We have an employee with an active workers’ compensation claim. We agreed with the employee that he would work a normal 40-hour-per-week schedule with exceptions for doctor’s appointments or therapy related to his injury. Instead, the employee’s absences have increased over time without medical certification. What recourse do we have?
Workers’ compensation claims can create complex employee management issues, but with a complete understanding of what workers’ compensation is and is not, employers can navigate these claims with a clear path.
Wage Replacement
Despite a lot of employer confusion around the protections of workers’ compensation claims, workers’ compensation does not provide job-protected leaves of absences. Instead, workers’ compensation functions very similarly to the State Disability Insurance (SDI) wage replacement program run by the Employment Development Department.
In both cases, SDI and workers’ comp are designed to provide wage replacement when an employee misses work due to a medical condition.
The difference between the two is that workers’ compensation is designed to handle medical conditions that occurred in the course of work and that it will also provide medical care for those injuries.
In both cases, SDI and workers’ compensation do not provide for any job-protected leaves of absence and the fact that an employee is receiving wage replacement and medical care benefits from workers’ compensation does not give the employee the ability to take leave. Other laws may provide that right.
Leave of Absence After Workplace Injury
Oftentimes, employees will need time related to a workplace injury. Sometimes it will be intermittent leave to attend doctor’s appointments and treatment sessions like in this case, or sometimes they will need whole blocks of time that may extend months to years.
In all cases of leave requests, whether the injury was work related or not, the employer’s approach should be the same. The employer should evaluate whether the employee is eligible for California Family Rights Act (CFRA) and/or federal Family and Medical Leave Act (FMLA) leave and designate time off taken under those job-protected leaves.
If the employee is not eligible or has exhausted their leave allotment under CFRA and/or FMLA, then the employer engages in the interactive process and provides leave if it is a reasonable accommodation under the disability protections in federal and California law.
In the situation described in the question, the only time off that has been certified by the employee’s medical care provider is time for appointments and therapy. If the employee is eligible for CFRA/FMLA, then the employer should designate each of those appointments and therapy sessions as intermittent leave.
Additional absences that the employee is taking need to be certified as needed by the medical provider. The employer in this case should inform the employee that these additional days off are unexcused and are not protected time, which means the employee is subject to any attendance control policy discipline the employer wishes to impose, up to and including termination — even though the employee has a workers’ compensation claim.
Of course, before termination, the employer should make multiple attempts to obtain the medical certifications and warn the employee of the consequences for failing to provide the medical certification.
Terminating Employee with Workers’ Comp Claim
The workers’ compensation law provides for retaliation protections. That is, an employer cannot be motivated to terminate the employee because the employee has filed a claim, or threatened to file a claim, or otherwise exercised their rights under the workers’ compensation law.
But that does not mean the employer cannot fire an employee with a workers’ compensation claim at all. The employer just must show that it is motivated by a legitimate business reason — in this case, the employee’s excessive unexcused absences.
Matthew J. Roberts, Associate General Counsel, Labor and Employment
CalChamber members can read more about Employee Protections from Workers’ Compensation Discrimination in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.
