Employers' Are Creating a Weather System That Forecasts a Hurricane of Discrimination Lawsuits

By: Elizabeth Moreno
Submitted: 2007-01-17 15:35:56
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California small business employers are creating a hurricane of lawsuits for themselves. With the elimination of vocational rehabilitation under California workers' compensation and after the Raine v. City of Burbank decision in January 2006, Employers' are misinterpreting the law and are refusing to accommodate employees, which is causing a massive flood of claims. Raine is an instructive opinion in that it gives the employer a step by step approach in finding whether an employee's request is reasonable in order to accommodate after a work related injury. Raine teaches employers' how to avoid the eye of the Hurricane.

Recently, I mediated and litigated claims where the employee, permanently disabled from a work related injury, was terminated following the finality of the workers' compensation claim. The problem stemmed from the misinterpretation of Raine v. City of Burbank decision. Raine stood for the proposition that an employer does not have the duty to convert a temporary accommodation into a permanent job assignment when so doing would create a new position for the disabled employee. Employers are taking the holding to the extreme and arguing that any accommodation in the permanent job position of an employee is creating a new position. Unfortunately, employers are missing the vital component in analyzing whether a new position is being created, whether or not it is a reasonable accommodation.

Employers still become very confused on how to handle an accommodation under a worker's compensation claim that turns into a FEHA/ADA accommodation. Employers' understand that in a work related injury that they should provide ‘light duty' positions in order to reduce their workers' compensation costs and liability. Usually these ‘light duty' positions are a requirement of the employer's workers' compensation insurance carrier. But once the employee's workers' compensation injury is found permanent and stationary, and results in the employee being rated with a permanent disability, what does an employer do? Raine is an instructive opinion in that it gives the employer a step by step approach in finding whether an employee's request is reasonable in order to accommodate. Raine teaches employers' how to avoid the eye of the Hurricane by following a process in accommodating a work related injury: 1. During the employees workers' compensation claim, offering temporary duty or light duty , 2. After completion of the workers' compensation claim, employee is permanent and stationary, and the employee's injuries are rendered permanent: perform an interactive job analysis, and 3. If reassignment is requested, find available alternative employment opportunities.

When it begins to rain, we are never certain whether it will pour. At least with the weather satellites and meteorological forecasting, we can be prepared for a storm, and attempt to prevent any damage the storm may cause. If a small business does not seek advice of legal counsel, to help them gain shelter from the storm, the small business will be washed away. The Raine decision is our weather satellite and gives us three valuable storm warnings to prevent a hurricane of disability discrimination claims.

Disclaimer: This article reflects the author's opinions and views on an employment issue; these opinions and views do not constitute a guarantee, warranty or prediction regarding the outcome of your legal matter; application of these views or opinions to any matter requires legal advice.

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