Workers’ compensation refers to benefit/insurance that offers an employee wage replacement and/or medical expenses in the event of an injury. Benefits can vary by state so it is important to refer to your state website to reference the regulations and requirements for your business.
A common legal dispute between employers and employees involves termination while an employee is on or in the process of filing a workers’ comp claim. Filing a workers’ compensation claim is usually something employees sometimes avoid due to fear of getting terminated, but it can still happen, and at times is more than justified. As a business owner, it’s critical to seek legal advice and help from an attorney before making taking such actions.
Workers’ Compensation Retaliation / Discrimination
A workers’ compensation retaliation happens when the employer takes an adverse action against an employee for filing a workers’ compensation claim or attempting to do so.
It’s illegal in most states to terminate employees for any reason if they filed a workers’ compensation claim. Depending on where you work, other related retaliatory claims include pay cuts or demotions, rather than getting fired. According to the law, all employees have the legal right to seek medical leave, treatment, and benefits if they’re unable to work due to a work-related injury.
If an employee believes they have had a pay cut or demotion for filing a workers’ compensation claim, they may seek legal protection with an attorney to avoid getting terminated/fired. In these cases, it is important for an employer to consult with their workers’ compensation defense attorney to prevent illegalities before taking actions against a claimant.
What is the Penalty for Retaliation / Discrimination in California?
Labor Code section 132a makes it a misdemeanor for an employer to discriminate in any way, including discharge or threat of discharge, against an employee who has filed or is thinking about filing a workers’ compensation claim or an employee who has received a workers’ compensation award. The employee who has been discriminated against is entitled to a penalty (not to exceed $10,000), reinstatement, and reimbursement for lost wages and work benefits.
The legal protection for these workers can extend to any individual who testify in a workers’ comp claim case. In the case of employees, they must file the claim within one year of the alleged retaliatory act, even if the act was getting fired.
How to Avoid Retaliation Claims
It is not uncommon for injured workers to file discrimination claims. Here are some guidelines for employers to protect themselves against such claims:
Communication: Communication is the foundation of every work relationship. In the event that an employee files a workers’ comp claim, do not get frustrated with the employee and, outside of management, do not talk about the incident with other members of your staff unless they were a witness or somehow involved. Be professional, attentive to everyone’s’ needs, stay positive, and thoroughly document everything about the incident in a timely manner.
Open Door Policy: Establish and embrace an open line of communication with your employees with an open door policy. This means you and your management staff encourages communication, feedback, and other matters of importance in the employee’s eyes.
Thorough Documentation: Make it a policy that every incident, big or small, is documented by management. Have procedures and templates in place to make the process easy and in a way that clearly states what happened, how it happened, and when it happened.
Encourage Employees To Take Ownership Of Their Responsibilities: Having a clearly defined work environment that encourages employees to take ownership of their responsibilities, and rewarding them to do so, can go a long way toward avoiding the potential for workers’ comp and retaliation claims. It makes sense that an employee who feels valued at work and whose input is heard and considered will be less likely to take legal action of any kind toward an employer.
Understand Your Responsibilities As A Business Owner: It is human nature to have biases and those biases, whether justified or not, will happen toward those who work for you. Just remember, you have to draw a line as to how those biases manifest.
According to the U.S. Equal Employment Opportunity Commission it is unlawful to retaliate against applicants or employees for the following:
- Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
- Communicating with a supervisor or manager about employment discrimination, including harassment
- Answering questions during an employer investigation of alleged harassment
- Refusing to follow orders that would result in discrimination
- Resisting sexual advances, or intervening to protect others
- Requesting accommodation of a disability or for a religious practice
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
How Can Employers Protect Themselves Against Compensation Claims?
A work-related injury can happen at any time, so it is best to be prepared with a reputable legal team in place when such incidents inevitably happen.
One of the most effective methods of preventing a workers’ comp claim is securing the workplace to help prevent accidents from happening. For example, if you run a restaurant, have the proper mats in the kitchen and behind the bar. Have uniform standards that include non-slip shoes.
Also, be sure to:
- Report any work-related injury to the company’s insurance provider.
- Investigate the work injury and document everything as thoroughly as possible.
- Perform an employment background check before hiring.
- Ensure that the workers’ comp claim is paid for promptly so that the worker can get back to work without filing another claim.
How Long Does an Employer Have to Hold a Job for Someone on Workers’ Comp?
It’s important to note that an employer cannot place any restrictions on or get employees fired while they’re on workers’ comp (purely as an act of retaliation). According to the law in most states, any worker who is injured on the job must be kept on staff until they fully recover from the injury and are ready to return to work.
If the employer cannot accommodate the employee, or does not have a position suitable for the new work restrictions (in the event the employee is not fully recovered and can work in limited roles) when the worker is ready to return to work, the employer may be allowed to replace the employee.
How Long Can an Employee Stay on Workers’ Compensation?
There are several factors that determine the amount of time the worker can stay on workers’ compensation benefits. First, it depends on the state in which the incident occurred and, second, it depends on the severity of the injury sustained.
Generally speaking, there are four types of worker compensation: Temporary, partial, full, or permanent. As a rule of thumb, a worker can benefit from a workers’ compensation claim for three to seven years after they have been injured. There is usually not a time limit for a worker with a permanent medical disability.
Workers’ Compensation Return to Work Policy California
While there are no specific employment requirements for people who got injured at work and need to get back to work after they recover fully, there are some requirements for people who were more severely injured and developed a disability.
In these cases, the employer must make reasonable accommodations for the worker, including being reinstated to a modified job or an alternative job if they can’t perform the previous one without help. Labor Code 132a prohibits an employer from discrimination against an employee who has filed a workers’ compensation claim. This discrimination can take many forms, such as refusal to return the applicant to work when the applicant is capable of returning to work.
Workers’ Compensation Defense California
Workers’ compensation requires more than just delivering medical treatment or writing a check. Workers’ Compensation demands active claims management to return injured workers back to productive employment, recognizing problem cases and taking assertive steps to resolve them, and litigating cases that cannot be settled. Workers’ Compensation law in California changes regularly, and staying abreast of these changes is not easy. Successful management of Workers’ Compensation claims often demand the attention of an attorney who focuses on workers’ compensation law on a daily basis.
If you are doing business in the State of California, and you are in need of workers’ compensation defense, call EDG Law today.