Double Jeopardy: Workers' Compensation and The Americans With Disabilities Act
California employers face double jeopardy for alleged discriminatory conduct against their employees. Employers must understand that their employees are able to simultaneously seek redress against them for discrimination at the WCAB and in Federal court.
For example, an employee suffers a broken arm resulting from a fall on the job and files a workers compensation claim. As a result of the accident, the employee suffers a permanent disability which renders his arm useless. After recovering from his injury, the employee returns to work. However, his employer feels that he is no longer able to perform his job and he is terminated. The employee demands that he be re-hired stating that he would be able to perform his job if the employer would make certain accommodations. His employer declines to re-hire the employee or make any accommodation.
A few weeks later, the employer gets served with a workers compensation complaint under section 132a of the Labor Code. Accompanying the workers compensation complaint, is a Federal Complaint alleging the employer discriminated against the employee in violation of the Americans with Disabilities Act. Shocked by being served with two complaints arising out of the same conduct, the employer immediately tenders both suits to its insurance carrier only to be stunned when the carrier promptly denies coverage.
Section 132a of the Labor Code prohibits discrimination against workers who are injured at work. The section prescribes increased workers= compensation remedies for any discrimination against an employee based on a work-related injury. Section 12112 of the Americans with Disabilities Act prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual." The Americans with Disabilities Act of 1990 (ADA) was enacted to stop the practice of relegating persons with disabilities to second class treatment within our society. These statutes subject employers to the possibility of being sued twice for the same discriminatory behavior. Moreover, the attorney representing the employee is entitled to recover attorney fees under both the workers compensation action and under section 12205 of the ADA. The employer may be liable for attorneys fees far in excess of any recovery the employee may receive.
California employers must be familiar with the ADA since it affects the relationship with their employees. The ADA prohibits an employer from discriminating "against a qualified individual with a disability" in its hiring and discharge practices, or anything else related to that person=s employment. The statute effectively requires private employers whom employ 15 or more employees for each working day, to justify job requirements and evaluation criteria for every employee. A "qualified individual with a disability" is someone who is able to perform, with or without a reasonable accommodation, the "essential functions" of the job. The ADA defines Disability as "a physical or mental impairment that substantially limits one or more of the major life activities." A work-related injury compensable under workers= compensation may or may not qualify under the ADA.
An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA. For example, suppose a construction worker falls from a ladder and breaks a leg and the leg heals normally within a few months. Although this worker may be awarded workers= compensation benefits for the injury, he would not be considered a person with a disability under the ADA. This is because the impairment is temporary and does not "substantially limit" a major life activity. However, if the injury caused a permanent limp, the worker might be considered disabled under the ADA if the limp substantially limited his walking, as compared to the average person in the general population. If an impairment or condition caused by an on-the-job injury does not substantially limit an employee=s ability to work, but the employer regards the individual as having an impairment that makes him or her unable to perform a class of jobs, such as "heavy labor," this individual would be regarded as having a disability. An employer who refuses to hire or decides to discharge an individual because of this perception would violate the ADA and section 132a of the Labor Code.
Both state and federal law prohibit discrimination against employees and directly affect the employer-employee relationship. Therefore, employers must be sure their practices, procedures and facilities do not discriminate against disabled employees, otherwise, the result will be costly.
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