Gino DiCaro

FEHA claims and workers’ compensation – a growing concern

By Gino DiCaro, VP, Communications

Capitol Update, July 28, 2006 Share this on FacebookTweet thisEmail this to a friend

With SB 899 (Poochigian R-Fresno) on the books, and California employers continuing to see their workers’ compensation premiums fall, a new concern has arisen.  The California Applicants Attorneys Association (CAAA), the attorneys who represent injured workers, has begun to focus on the Fair Employment and Housing Act (FEHA) in their search to recoup lost income from reforms in workers’ compensation.

FEHA cases in this context involve return-to-work issues for injured workers who cannot return to their normal jobs.  Once an injured worker has been told by their doctor that they cannot return to their usual and customary job duties, an employer is obligated to engage in an interactive process to determine when the worker can return to a modified position.  This process includes meeting and conferring with the employee to determine if the employer can modify a position to adhere to the physical restrictions outlined by the injured worker’s physician.

Applicant Attorneys have identified this process as a potential strategy for additional litigation in workers’ compensation claims during multiple public forums.  CAAA has warned its members that they could be faced with malpractice claims if they do not properly advise their clients on the potential for litigation under the Fair Employment and Housing Act.  While recent developments seem to indicate that CAAA members are serious about this type of litigation, it is unclear to what extent employers are preparing themselves.  Recently one attorney sent a mass mailer attempting to locate former Sears employees for a class action lawsuit on this very issue.  This was after the same attorney filed a FEHA suit against Sears and had the case settled out of court.

As the workers’ compensation reforms continue to take hold, and costs continue to decrease, those that benefited from the inefficiencies of the old system will be looking for new ways to profit from the new one.  FEHA lawsuits are one method that may be used to accomplish this goal.

Staff Contact: Jason Schmelzer

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