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Tuesday, November 9, 2010

Returning to Work after an Accident

Injuries happen; at work, away from work, on vacation or at home.

Regardless of the cause of your injury, the Americans with Disabilities Act (Federal) and California Fair Employment and Housing Act (State), known as ADA and FEHA have created rights for disabled individuals right to return to work.

Under California Law and Federal Law, once an employer has notice of a disability, then the employer must make a reasonable effort to accommodate an injured person in returning to work. You just read a very complex legal sentence and it seemed so simple.

First, Notice, how does an employer get notice of an injury? If you are injured at work and have a workers' compensation claim, the notice is pretty obvious because the employer will be tracking the injured workers return to work progress and will get notice of any disability. What about something that occurs away from work? Well the injured worker may have a duty to give notice to the employer. The easiest way to give notice: Give your employer's HR department a note from your doctor outlining your disability. The next step is important, follow up delivery of the note with an email directed to the HR department confirming delivery of your note and requesting accommodation.

Second, Disability, what constitutes a disability? This is a difficult question and has various definitions. In the context of ADA and FEHA a disability most likely means, any impairment, which requires some type of job Accommodation. This can be anything from a broken limb, a paralysis, a heart condition, a mental stress condition, breathing or circulatory issues, and even psychological issues.

Third, reasonable effort most likely means the employer has an affirmative obligation to contact the employee and should have a meeting with the employee to see if the employee's disability can be accommodated. By this rationale, the employee also has an obligation to respond to the employer's efforts to meet with the employee. If you are going to an accommodation meeting and you have an open personal injury claim or workers' compensation, then your attorney should attend the meeting with you to make certain the accommodation meeting does not affect your case in chief.

Accommodation. What is an accommodation? It generally means, can the injured worker accomplish the essential tasks of the job with REASONABLE accommodation. There are several factors bearing on reasonable: the cost to modify the workspace; the loss of productivity; the interruption to the work environment; Safety of the worker and those around him; the ability to retrain or move the worker to a position within the company; any other reasonable factor the parties choose to consider. This means there is no obvious answer to what it means to accommodate. Once again it becomes a judgment call as to the REASONABLE actions of the employer.

If you are in the unfortunate position of needing work accommodations due to an injury, or office can help make the transition back to work easier.

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