You terminate an injured employee for reasons unrelated to their injury. But if you assume the discharge ends your obligation to provide the employee with vocational rehabilitation services, you could be in for a costly surprise.
Injured Worker Terminated
Abraham Robertson injured his lower back while working as an order selector at Mountain People’s Warehouse, a natural foods distributor with locations in Auburn and Fontana. He returned to work but was soon fired under a discretionary company attendance policy for having nine unexcused absences in fewer than 12 months. The absences were unrelated to Robertson’s injury.
A few months later, Robertson’s physician determined he was permanently disabled, could not return to his usual occupation, and therefore qualified for vocational rehabilitation (VR) services.
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Virtual Job Offer
Shortly after Mountain People’s Warehouse received the doctor’s determination, its insurer sent a letter to Robertson stating he would have been offered an alternative position as an invoicer had he not been terminated for violating the attendance policy. The invoicer position was compatible with Robertson’s job restrictions.
The Workers’ Compensation Appeals Board (WCAB) ruled Robertson wasn’t eligible for VR services because Mountain People’s Warehouse said it would have offered him the invoicer job if he had remained employed. Robertson appealed.
Employer Not Relieved of VR Obligation
But now a California appeal court has reversed the WCAB’s ruling, finding the company did not actually offer Robertson alternative work.When an injured worker is eligible for VR services, the employer may satisfy its VR obligation by either 1) offering VR services or 2) making a good-faith offer of a modified or alternative position that’s compatible with the employee’s work restrictions. A modified job is the injured worker’s usual job with the employer, only adjusted to accommodate the employee’s limitations. An alternative position is a job that is not modified work but is compatible with the work restrictions.
Mountain People’s Warehouse pointed out that if an injured worker who is placed in an alternative or modified position is terminated for cause within 12 months of the placement, the employer’s VR obligation ends. But, said the court, Mountain People’s didn’t qualify for this exception. That’s because 1) it didn’t actually offer alternative work, 2) Robertson never accepted an offer of alternative work, and 3) Robertson never re- turned to an alternative position that was later terminated for cause.
Mountain People’s also argued that it shouldn’t be penalized for enforcing a legitimate company policy against Robertson. But the court said termination under the attendance policy was discretionary and that the company could have decided to retain Robertson and make a true offer of alternative work.
Impact in Light of New Comp Reforms
This case demonstrates that terminating an injured worker won’t necessarily end your obligation to provide VR services. And note that even though VR benefits as provided in the past will be eliminated for injuries occurring on or after Jan. 1, 2004, when the new workers’ compensation reform legislation takes effect, the court’s reasoning in this case will continue to apply. That’s because although the current VR program is being replaced with a less-expensive voucher system, the legislation retains provisions dealing with offers of alternative and modified work.
Usually the sooner you can get an injured worker back to productive work, the better off the employee and your organization will be. Once an employee’s condition is permanent and stationary, consider whether any jobs in your organization fit the individual’s limitations. After identifying alternative or modified work, put the offer in writing as soon as possible. If the employee accepts the position, be sure to track the employee’s progress. Should the employee decline the job, keep thorough records of the offer and your communications with the employee.