Monday, March 12, 2012

Accommodation and Termination

One of the first questions confronted by every worker who suffers an injury on the job is What can my employer do to me now?  In addition to the pains of the injury itself, there is the deep wound of dampened financial prospects from possible job loss.

The basic answer is as simple as it is slippery:  On the one hand, your employer cannot punish you because you have filed a claim for a work-related injury. And this applies not just to firing you, but to any discriminatory action.

To discriminate against a work comp claimant is not only prohibited; it is a criminal offense under Labor Code Section 132A.

This sounds pretty good for workers, but the second point cuts in the exact opposite direction: by law employers do not have to accommodate any work restrictions. That is, while punitive termination is strictly forbidden and harshly penalized, “letting go” of a worker who “can no longer perform her job duties” is quite alright. Indeed, it’s done all the time. As long as the treatment is not worse simply because the employee suffered a work-related injury.

Discrimination against an injured worker means more than just some detriment. The legal problem comes when the employee is targeted because the injury occurred at work.

A few moments’ reflection should reveal the depth of this problem.

Recently, the Workers’ Compensation Appeals Board has had to confront this issue in the context of a police officer who suffered a work injury to his psyche. Charles Kesecker, a police sergeant at Marin Community College, had an unfortunate series of work troubles in the form of gastroesophageal reflux disease, a wounded elbow, hypertension, and psychological trauma. His experiences in the line of duty caused his problems.

The workers’ comp system worked as it should, and gave Kesecker medical treatment and permanent disability awards for his injuries. Kesecker took a psychological test, passed, and returned to work.

Things went well for two years, until Kesecker’s supervisors forced him to take another psychological exam. There was no standard practice to give such exams along these lines; they selected Kesecker in particular for this exam. This time around, the examiner deemed him unable to continue employment and his employer terminated him on these grounds.

Kesecker took legal action, with initial success. The workers’ comp judge deemed the employer’s act to be punitive—a good deal beyond standard failure to accommodate, a way of singling out Kesecker because he had a permanent disability award.

Strangely enough, the Workers’ Compensation Appeals Board did not agree and reversed the comp judge. They stated that even though Kesecker was deliberately given a psychological exam, the old distinction holds:  that is, he was not targeted because his psychological trauma arose in the line of duty, but because he suffered psychological trauma. A worker who suffered from non-work causes might be treated the same way, or at least Kesecker had not adequately shown otherwise.

Kesecker was undoubtedly targeted because of his work-related psychological injury.  His employer just maintains that he was targeted because of the injury itself, rather than the fact that Kesecker suffered it in the line of duty.

If that disturbs you, you are not alone. Employers seem to have an easy job of getting rid of their injured employees, and if the Workers' Compensation Appeals Board’s reasoning triumphs bosses will be able to act with impunity—assuming they aren’t caught on record stating, “Hey, let’s fire this guy for filing a work comp claim!”

However, the matter may not be done yet—Kesecker’s attorney has petitioned the California Court of Appeals to hear the case, and is expected to find out on March 6th whether or not they will grant review. Whatever they decide, the question of punitive termination versus supposedly innocuous “layoffs” due to “inability to accommodate”—the end of that question is not yet.