Does an employee have a "right" to return to work with the same employer after on the job injury? Plus, employer notification.

Asked almost 3 years ago - Orange, CA

1. If an employee has a job related injury that keeps him out for a year, does his employer have a legal obligation to try to retur hin to work at the same or similar job?

Or can they say, "Sorry. Found someone to replace you. So long and good luck".

It is not the type of job that requires a lot of brain power and efort to train someone for.

2. Even if he is not returning to work soon, does the employee have to keep the employer informed of his condition and or progress? The insurance company that the employer had dropped them, so i don't think there is any contact there.

Attorney answers (5)

  1. Nancy J Wallace

    Contributor Level 14

    1

    Lawyer agrees

    Best Answer
    chosen by asker

    Answered . Sadly, the law let's the employer kick you to the curb with a 'goodbye & good luck'.

    The only penalty in the current law is a 15% increase in permanent disability.

    Does the employee have to keep the employer informed of his condition?? YES !!!

    The employer can terminate an employee for Job Abandonment when the Employee fails to notify the employer why they are not reporting to work.

    The Employee cannot presume the employer is receiving reports from any doctor.

    The employee must keep the employer notified of the Work Status. The progress is unnecessary.

    I typically fax off-work-orders for my clients to the Human Resources offices so i know the employers cannot claim later they never heard from the employee.

    NEVER PRESUME A TELEPHONE MESSAGE got to the right person. Either mail an Off Work Notice by Delivery Confirmation or fax it and keep the fax transmission report.

    If you can somehow PROVE (not just state, but actually PROVE) the only reason the employer let you go was to retaliate for your requesting comp benefits, you can submit a petition for an increase in benefits for violating Labor Code 132a (the comp equivalent of Wrongful Termination).

    Trouble is, YOU have a very heavy burden of proof to show an employer's MIND. You need to show INTENT. Short of a memo from the president advising all injured workers be terminated or an HR executive testifying against his employer at trial that all folks injured are automatically terminated, it's nearly impossible to prove the employer's state of mind.

    If you were told Goodbye & Good Luck, contact the State Dept. of Rehabilitation ... this is set up to help the disabled get new jobs.

  2. George Ellis Corson IV

    Contributor Level 20

    3

    Lawyers agree

    Answered . LC 132a makes it illegal and and actionable to discriminate against a worker for making or assisting in a WC claim (witnesses are sometimes protected). However, termination does not necessarily mean discrimination, as there are many reasons that persons are laid-off or fired. In order to prevail, current CA Law requires that the person prove they were treated worse than similarly situated employees BECAUSE of the WC claim. Performance, seniority, attendance, medical reporting, business necessity, etc. all provide alternative bases for adverse personnel action. As a result, there is a high standard to meet for 132a Discrimination in ruling out every other potential cause. Check out my Legal Guide on 132a for additional information.

    There are potential remedies in State (FEHA) and Federal (ADA) for discrimination relating to disability that may also be available, but your facts are very light on any potential discrimination in the face of 9% Unemployment. Frankly, people are lined up 4 deep to take ANY job, and the employers have no obligation to leave positions open in most circumstances.

  3. George Ellis Corson IV

    Contributor Level 20

    2

    Lawyers agree

    Answered . The employee cannot be fired BECAUSE they filed a WC claim. They can be fired/laid-off/replaced for any of about 100 other reasons despite filing a WC claim. Aside from 13 weeks of FMLA, your job is not safe.

  4. Brett A. Borah

    Contributor Level 20

    2

    Lawyers agree

    Answered . I believe Mr. Corson is correct in his reponse. An employer cannot discriminate against an employee because that employee got hurt on the job, sought w.c. benefits or hired an attorney. But, of course, they never do that. They find a million other reasons.

    Just as you are not required by law to return to that employer, they are not required to hold your job for you. In my office, I have one secretary. If she were out for a year for any reason, I would likely not be able to hold her job for her.

    If you're not going back to that job anyway, I see no reason to keep them informed as to your medical status. If they've terminated you, they probably don't care as to your status.

    Good luck.

  5. Gary Christmas

    Contributor Level 11

    1

    Lawyer agrees

    Answered . You need to speak with an attorney in your jurisdiction to determine your local rules but generally if the company you work for is a certain size then federal law, Family Medical Leave Act or FMLA, can come into play and provide you with several months off to recover from your injuries with the employer having to keep your job open during that time period. This does not last for an entire year and the FMLA may not even be available to you depending on the size of your employer. You should seek advice from an attorney in your area right away.

    DISCLAIMER The contents of this answer are for informational purposes regarding legal issues in South Carolina... more

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