Employment Attorney Christine Mueller Published in The Daily Transcript

Managing Worker’s Compensation Leaves of Absence
By Christine Mueller, Esq.; Employment Attorney Pettit Kohn Ingrassia & Lutz
March 30, 2015

Companies are facing increasing costs of workers’ compensation insurance, as well as increasing administrative obligations in handling employee leaves of absence due to workplace injuries.

Generally, employers must provide a workers’ compensation leave of absence as long as required to enable the employee to return to work. Leaves of absence due to an occupational injury can overlap with federal and state employment laws, such as the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA). This can lead to two common, and challenging, situations.

First, because there is no statutory time limit on a workers’ compensation leave of absence, many employees may be on leave for months or years at a time. While the injury claim works its way through the workers’ compensation system, the employer must generally continue providing a leave of absence. Termination of employment, especially during the pendency of an injury claim, will almost certainly lead to a workers’ compensation discrimination claim.

Employers may choose to handle this situation by keeping the employee “on the books” for as long as necessary, and then assessing the employee’s ability to return to work when able. This is done at no cost to the employer, since the employee is not earning wages or accruing benefits during the leave.

Second, some workers’ compensation claims end when the employee is deemed permanently disabled such that he or she can no longer perform the job held at the time of the injury. Employers must remember that they still have obligations under the ADA and the FEHA to engage in further communications with the employee.

The employer must work with the employee to determine whether it can provide any accommodation that will enable the employee to perform the job. This can include transferring the employee to a different worksite, modification of work schedule or duties, or reassigning the employee to a vacant position for which the employee is qualified. The employee may even be entitled to preferential consideration of reassignment to a vacant position over other applicants and existing employees.

Navigating leaves of absence can be challenging for employers, particularly when employers have overlapping obligations under the workers’ compensation scheme, the ADA, and the FEHA. Employers should exercise caution when managing leaves of absence, and develop policies and procedures that minimize their risks.

Christine M. Mueller is an attorney with Pettit Kohn Ingrassia & Lutz in San Diego.  She represents employers in litigation and administrative matters, and advises employers and human resources professionals on developing and enforcing appropriate employment policies. The material contained in this article has been prepared for informational purposes only. It should not be construed as legal advice. Pettit Kohn expressly disclaims all liability with respect to actions taken or not taken based on the content of this article.

*This article first appeared online The Daily Transcript on March 30, 2015. Print edition available March 31, 2015 on page 7A.