Work place injuries are inevitable given the type of job duties first responders engage in. The process following these injuries can be difficult and complicated, especially when it comes to dealing with work restrictions. Given the impact work restrictions can have on an employee’s ability to return to work and their ability to actually continue performing their usual and customary job duties, it is critical to understand the process and the implications.
To begin with, it is important to understand the difference between temporary restrictions and permanent restrictions. Temporary work restrictions are exactly that, temporary. Following an injury, an employee’s condition is considered to be temporary until a physician ultimately determines that their condition has stabilized and has become permanent. During this period of temporary status, a physician decides whether to allow the employee to return to their regular duties, temporarily take them off of work completely or temporarily allow the employee to return to work but with certain restrictions.
Once temporary work restrictions are provided, it is up to the employee to put their employer on notice of the restrictions. Once the employer has been notified, they have a duty to engage in a timely and good faith meeting with the employee to discuss the restrictions and determine whether the employee can return to their regular duties despite the restrictions or whether a reasonable accommodation can be made. This meeting is known as an interactive process meeting (IPM). An employee has the right to have a representative present during the meeting however there isn’t much a representative can do on the employee’s behalf during these proceedings. For this reason, they are generally attended without a representative present. We encourage our clients to attend the meetings but to hold off on signing any documents until we have had the chance to review them.
Most employees are under the impression that the employer must provide an accommodation. However, this is simply not the case. The employer is only required to act in good faith and attempt to provide a reasonable accommodation. If an accommodation cannot be made, the employee will remain off work just as if a doctor had taken them off work completely. We often hear about cases where the employee believes an accommodation is actually available, yet the employer made no accommodation. In such a situation, it is important to raise your concerns at the IPM and have the employer explain in detail why that accommodation or position is not available. If an employee feels that the employer failed to act in good faith, consultation with an attorney would be recommended.
In the event the employer determines that they can accommodate the temporary work restrictions provided by the employee’s physician, they will offer the employee a temporary assignment. This is often referred to as a work hardening transitional assignment or “light duty.” It’s essentially an agreement between the employer and employee that allows an employee to return to work in a temporary assignment performing functions other than those usually assigned to the usual and customary position.
If the accommodation being made by the employer is considered reasonable, the employee is expected to report for that assignment. However, the question of reasonableness is often raised and whether the accommodation is reasonable is fact specific and determined on a case by case basis. Generally, the employer does have the right to offer an accommodated position that is at a different work site, or requires different working hours or has a different schedule all together as long as the accommodation is considered to be reasonable. If the reasonableness of an accommodation has become an issue, consultation with an attorney would also be recommended.
In terms of duration, there is no telling how long a light duty assignment will last. It could last the duration of the employee’s temporary restricted status or be eliminated shortly after being offered. If the light duty position is no longer needed or eliminated, it is up to the employer to determine once again whether there are any other light duty positions available. This process will continue until the employee is released back to full duty or their condition changes from temporary to permanent.
Once the employee’s condition has transitioned from temporary to permanent, a determination will be made as to whether any work restrictions are needed on a permanent basis. This determination is usually made by the treating physician or an independent neutral physician and can have serious ramifications on an employee’s ability to return to their usual and customary position.
If permanent work restrictions are ultimately imposed, the employer must once again arrange an IPM to determine whether the employee can return to their usual and customary job duties. During this meeting, they review the permanent work restrictions that were provided along with the essential functions of the employee’s position. If the work restrictions do not interfere with the employee’s ability to perform the essential functions of the job, they can return to their usual and customary job duties. However, as is often the case, if the work restrictions interfere with the ability to perform the essential functions of the job in any way, the employer will likely not allow the employee to return to that position. Despite what many believe, generally there are no permanent light duty positions for first responders and the employer is not required to find a permanent light duty position for an employee.
If the determination is made that permanent work restrictions prevent the employee from performing the essential functions of their position, the employer is obligated to perform a department wide search to determine whether there are any modified or alternative positions available to the employee. If there are no positions available within the department, then a County wide job search is undertaken in an attempt to identify a permanent position to accommodate the employee who can no longer perform their usual and customary position. While this process is taking place, the employer may provide a temporary conditional work assignment to allow the employee to return to work while the department attempts to find a compatible permanent position.
If a different position is found for the employee within the department or within a different department, it is up to the employee to decide whether to accept the position. While these positions usually result in a demotion and lower pay, the employee may be entitled to a salary supplement payment from LACERA to cover the loss in wages. The other option available to the employee who is unable to perform their usual and customary job duties would be to pursue a service-connected disability retirement through LACERA, if eligible. If the employee refuses to apply for a disability retirement, the department may file an application on the employee’s behalf or medically separate the employee from county employment if they are not eligible for a service-connected disability retirement.
We understand that these situations are difficult to navigate and can have far reaching effects on your employment. Please remember that our office is always available to discuss these issues with you in a free, no obligation consultation.
