Workers' Compensation Myths
Issue # 64
July, 21, 2008
California's first workers' compensation law was established under the Compensation Act in 1911 (the Roseberry Act), in which participation was voluntary for employers. A compulsory system was established two years later as the Workers' Compensation Insurance and Safety Act of 1913 (the Boynton Act), which required employers to provide benefits for all employees on the job and generally prohibited employees from suing their employers over their injuries. The Act blocked employees from recovering money for pain and suffering or from seeking punitive damages. Over the course of time, workers' compensation has often been referred to as the exclusive remedy for injured employees.
In last weeks risKey we discussed disability discrimination laws and how the broad definitions used in the California Fair Employment and Housing Act (FEHA) may apply in a situation involving an employee who was injured on the job and then returns to work on a modified duty basis. If the employer does not undertake an interactive process with the employee in determining a reasonable accommodation, the employer could be subject to a disability discrimination lawsuit.
It is important to understand that the workers' compensation process is separate from the employer's obligations under the FEHA and an employee's rights under the FEHA are separate and apart from his/her entitlements under the workers' compensation statutory scheme.
Effective January 1, 1994, a section of the Government Code was amended to make clear that "nothing contained in the FEHA shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this State relating to discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, unless those provisions provide less protection to the enumerated classes of persons covered under this part."
The California Supreme Court ruled in 1998 that Labor Code section 132a (discriminating against an employee for filing a workers' compensation claim) does not provide an exclusive remedy to an employee who suffers a work-related injury that results in a disability.
Employers should be cautioned to look beyond workers' compensation laws when a workplace injury occurs, as some of the old myths may not longer apply.
Kempkey Insurance Services goes beyond insurance by designing and implementing risk management programs for growth oriented businesses. We help our clients maximize the value of their insurance dollars and minimize their potential for unwanted surprises. Ed Kempkey can be contacted at (888) 536-7539 extension 2188, or at ed@kempkey.com.