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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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(This is in the State of CA): I provide day services for adults

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(This is in the State of CA): I provide day services for adults with cognitive and physical disabilities. The business is small with fewer than 15 employees. I have an employee who was injured 10/19/12 lifting a client and sought workers comp treatment. She has now been given clearance to return to work full-time but we had not have full-time employment right at this time. We have offered her part-time until a full-time spot opens up. Are we violating the law by not giving her back full-time employment? Second question: employee also reports that she is unable or unwilling to do basic caregiving tasks, .e.g., bending, lifting, running (e.g., if a client ran in the street) which are identified in the job description. She has been fully cleared to return to unmodified duty. Do we need to honor her request?
Q: Are we violating the law by not giving her back full-time employment?

A: Hello. There are two laws under which you could be held liable. Cal. Labor Code 132a prohibits discrimination against an employee for filing a workers compensation claim. The maximum penalty is an additional $10,000 in civil damages to the employee. Your facts do not necessarily show discrimnation. If you can show that you simply needed to hire additional employees to cover the injured employee's workload, then you are not discriminating -- you're just running your business. But, there is a risk, that the Workers' Compensation Board will find differently. So, you must decide whether or not you wish to encounter the risk. Were I the judge, I would probably rule in your favor, because even had your employee exercised federal Family and Medical Leave Act rights to job protection, that protection would have expired 12 weeks after it began (approximately January 2013).

The second law is the Americans with Disabilities Act (ADA), which prohibits discrimination based upon disabilty. The law does not require reinstatement to a former job position. All that is required is that the employer provide reasonable accommodations so that the employee can perform the essential functions of his/her job. Nothing requires reinstatement to full-time employment. So, here again, there is a risk that a jury could decide you are discriminating, but were I the judge, I would rule in your favor, because with only 15 employees, you suffer an undue hardship by having to hold an employee's job for an indefinite period of time.

Second question: employee also reports that she is unable or unwilling to do basic caregiving tasks, .e.g., bending, lifting, running (e.g., if a client ran in the street) which are identified in the job description. She has been fully cleared to return to unmodified duty. Do we need to honor her request?

A: No, you do not. An employee who cannot perform the essential functions of her job can be terminated unless reasonable accommodations are available to assist. However, an employee who is fully cleared, is no longer disabled under the ADA, so the employer is no longer obligated to accommodate. Therefore, if the employee insists on rejecting her job duties, you can terminate her employment.

Hope this helps.
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