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December 13, 2022

Preventing Discrimination: The Workers’ Compensation Trap

The Scenario: Employee sustains a work-related injury and files a workers’ compensation claim. While the claim is pending, the employee is declared temporarily totally disabled (“TTD”) for one reason or another. After receiving notice of the TTD finding, the employer, believing the employee to be “totally disabled” (as opposed to “temporarily totally disabled) either refuses to allow the employee to return to work in the same position held prior to the injury, or allow the employee to return to work but in a different position. The employer then instructs the employee not to return to work until they are released to return to work with no restrictions or until the TTD status is lifted. Sometimes the employer even terminates the employee.

The Issue: It happens often; an employer inadvertently adopts a tunnel vision approach to the above scenario by viewing the employee’s rights and the employer’s obligations strictly from the standpoint of the workers’ compensation claim once it receives a TTD status report. In doing so, the employer risks overlooking the employee’s rights under the California Fair Employment and Housing Act (FEHA)[1], which extend beyond workers’ compensation[2] obligations.

A TTD finding in a workers’ compensation action will not discharge an employer’s affirmative obligations under the FEHA to conduct a separate analysis on whether the disability can be accommodated irrespective of the TTD finding and to engage in a good faith interactive process to develop an accommodation. Employers must be cautious and alert to the fact that the FEHA and workers’ compensation matters are apples and oranges, and that a finding of TTD must be strictly limited to workers’ compensation status and cannot carry over into the employer’s duties under the FEHA.

Workers’ compensation is designed to provide benefits, or income replacement, to employees whose earning capacity has been interrupted because of a work-related injury. FEHA, on the other hand, achieves a much different public policy with equal importance, which is to prohibit discrimination based upon an employee’s disability. The California Legislature therefore drafted each statutory scheme, including the obligations thereunder, to fit those specific purposes.

Accordingly, an employer has an obligation to comply with FEHA and workers’ compensation because they are two concurrent, but independent, statutory schemes intended to protect employee rights for different public policy reasons. An employer who chooses to adhere only to the workers’ compensation scheme risks ignoring its duties of nondiscrimination and reasonable accommodation under FEHA.

Employers can lower the risk associated with claims alleging the failure to provide a reasonable accommodation by:

  • Understanding the inherent differences between employer duties under the FEHA and workers’ compensation statutes.
  • Implement and/or update existing job descriptions to assure accuracy. This step enables certifying healthcare providers to more accurately evaluate the individual’s ability to perform essential functions.
  • Training supervisory personnel on how to handle requests for reasonable accommodation.
  • Maintaining and distributing legally compliant written anti-discrimination/retaliation policies.
  • Refrain from making assumptions about an individual’s disability or accommodation status. Use the interactive process to seek clarification from the employee if the accommodation request is unclear.

Growers seeking further information about their duties of nondiscrimination and reasonable accommodation, should contact Western Growers.


[1] California employers with 5 or more employees are subject to the FEHA. Additionally, under the FEHA, employers with only one employee are subject to laws against harassment.

[2] All employers are subject to their respective state’s workers’ compensation laws.