Managing Employee Injuries and Disability and Occupational Safety

4. O THER S ITUATIONS TO W HICH S ECTION 132 A H AS B EEN A PPLIED Section 132a has been applied in situations other than employee termination. For example, in Leamon v. WCAB , 58 the employer had a rule whereby absences due to industrial injuries were not considered “unexcused” absences for purposes of computing whether an employee would be subject to later discipline for excessive absenteeism. The employer refused to correct the employee’s personnel records after it was apprised certain of the absences were due to the industrial injury. This conduct was held to violate Section 132a. It is interesting to note, however, that in the Leamon case, the employer’s initial action of terminating the employee for excessive absenteeism, when it did not know that certain of the absences were work related, was held not to violate Section 132a. In Stremler v. WCAB , 59 the California Court of Appeal rejected a claim that the California Department of Transportation’s safety incentive award program violated Section 132a. Cal- Trans had negotiated an agreement with the State employees’ union which provided a bonus to employees who did not have a lost-time work injury. An employee who did not receive the bonus claimed that this was discriminatory. The court rejected the employee’s claim, but on very narrow grounds. It concluded that the employer’s incentive program was discriminatory, but that because such programs were specifically authorized by statute (Government Code Section 1994.20) that this specific statute prevailed over Section 132a. It is possible that an employer may violate Section 132a if it unreasonably or unjustifiably refuses to provide an employee benefits which may be due to him. In Smith v. WCAB , supra, the Court of Appeal noted that the employer’s apparently unjustified refusal to provide certain medical treatment could state a claim for a violation of Section 132a. In a recent panel decision, the WCAB held that it was not a violation of Section 132a to insist that an employee submit a resignation as a condition for a compromise and release settlement of his workers’ compensation claim. Note that the Board panel left open whether insistence on a resignation as a condition for settlement by stipulation with request for award would be permissible. Please note that this is a panel decision and may not be cited as precedent. C. M ANAGEMENT C HECKLIST FOR A VOIDING L IABILITY FOR C LAIMS UNDER L ABOR C ODE S ECTION 132 A  Always carefully review all available medical evidence. Particular attention should be paid to whether or not the medical evaluator is conversant with the duties of the employee’s position. Mere reliance on the medical evaluator’s description of permanent disability in terms of the permanent disability rating standards (e.g., no heavy work, no heavy lifting) will not necessarily determine whether an employee is medically disqualified.  Obtain a job analysis from a qualified vocational rehabilitation specialist. If possible, the employer should obtain the employee’s agreement that that job analysis accurately reflects the duties of the position.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 67