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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4999
Experience:  Extensive experience representing employees and management
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I work for Kaiser Permanente in Northern California. I am a

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I work for Kaiser Permanente in Northern California. I am a Physical Therapist. I got injured on the job Dec/2010. Unfortunately , the poor care of Kaiser Occ Med for 5 months caused me further injuries, so that I am still ( although I tried twice to go back to work) not able to work again. I had an AME just recently and I was told he would not consider me P&S yet but was recommending for me to go through an 8 week FRP ( Functional Restoration Program). I am now just waiting for that to be initiated. I talked to the Kaiser Disability Manager today and she was just eager to know what restrictions the AME had put on me. I explained the situation to her that restrictions had not been set and I was waiting for the FRP treatment.
She just told me since I couldn't give her a return to work date yet and I had been off work already for so long (kaiser has a policy that they could terminate me after being off for one year) and they already extended my leave for so much longer I may now get terminated. I was stunned because I am awaiting still a very important treatment and have not been considered P&S and if Kaiser Occ Med wouldn't have mistreated me for 5 months causing me more injuries ( Physiaclly and mentally) I would have been back at work a long time ago. Can they fire me ? What are my rights?
I had an excellent work record for 23 years before I got hurt. I do have a WC attorney, his office told me that this is not his field of practice.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service today.

Can you please tell me if you're an at-will employee, or if you have or had an employment contract with Kaiser, and/or if you are a member of a union?

If you are an at-will employee, then Kaiser can terminate you while you are on workers' compensation if you are unable to return to work with a reasonable accommodation that would enable you to perform the essential functions of your job, and/or if the reasonable accommodation causes an undue burden on Kaiser.

While extending your leave a certain amount can be considered a reasonable accommodation, that typically ends after a year or two of leave. At that point, the scales start tipping in favor of the employer, since it becomes less and less reasonable to keep you on as an employee the longer you have been away from work and unable to return--and the less likely it appears that is either reasonable and/or not an undue burden for your employer to extend your leave further to allow you to return to work (to perform the essential functions of your job).

(Although Kaiser itself is responsible for you still being out of work due to it's potentially negligent care, that doesn't have a bearing on what is or isn't a reasonable accommodation, but definitely does give potential rise to a malpractice cause of action and/or greater damages in workers' compensation).

Of course, if you are able to return to work eventually, and reapply at Kaiser, and believe that you are either not hired due to your workers' compensation complaint, discrimination on the basis of a disability, (or age discrimination, over 40), you would have grounds for a discrimination and/or retaliation lawsuit against Ksiser.

I am surprised that your workers' compensation attorney wouldn't tell you this (since this knowledge definitely shouldn't be 'outside of his practice' even if he or she focuses on workers' compensation), but I imagine it's because they don't want to give you news that they know you are not going to want to hear, which would potentially damage his working relationship with you.

I realize that the above information is definitely not what you wanted to hear and I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate an honest and direct answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

Please let me know if you have any follow up or clarifying questions.

Thanks and best of luck!
Customer: replied 1 year ago.

Thank you for the information.


I am not a member of a union. I do not know if I am a at will employee , I would assume so.


So, I would not have a chance to sue them for wrongful termination ?


I have never been considered P&S yet and the FRP the AME wants me to go through is apparently a pretty special deal (and expensive for WC) to get me 'back on track' and back to work. Obviously the AME has seen that potential in me. So at this point I will be receiving a very important treatment in my recovery . Afterwards the AME stated he wanted to do a functional capacity evaluation and likely then rate me I would assume.


So , then I would have a 'final' statement about my abilities . At this point that has not been established.


Then Kaiser would have to see how further ( not just time wise ) they would have to accommodate me. It would be nice if they would give me that chance before terminating me.


 


Any thought on this?

Expert:  Joseph replied 1 year ago.
Hello Anne,

Yes, I'm afraid that any potential cause of action based on wrongful termination would be weak at best and it would be difficult to get an attorney interested in accepting the case, due to the low chance of a settlement or verdict.

I think that your suggestion to Kasier would be a good one, and you may be able to persuade them to keep you on as an employee for another few months (probably 6 at the absolute most) to see what you are able to do when you get the final statement of your abilities.

But, unfortunately, as I mentioned before, I don't think a jury or court would find that Kaiser discriminated against you on the basis of your disability or failed to provide you with a reasonable accommodation, since they have kept you on as an employee for over two and a half years now since your injury in December 2010. (Typically, employers allow far less time than that, and are normally only legally obligated to provide three months under the Family Medical Leave Act).

Joseph, Lawyer
Satisfied Customers: 4999
Experience: Extensive experience representing employees and management
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