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Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, associate General Counsel with the California Chamber of Commerce. Hello, listeners. Well, something we've come to learn over thousands of member interactions here at Cal Chamber is that one of the more confusing and misunderstood aspects of managing a workforce is handling workers compensation issues. From what to do and when to do it when a workplace injury occurs, to how to work with employees who have ongoing workers compensation claims. Employers can have difficulties managing these issues. So to discuss several important considerations regarding workers compensation practices, we are happy to welcome back Vanessa Green, Cal Chambers employment law subject matter expert. Thank you for being here, Vanessa.

Oh, you're welcome, Matt. Thanks for having me here.

Alrighty. Well, as you might imagine, we have a lot to jump into today, so let's just get started right away. And I think the first question that we see a lot from employers is how far does coverage of workers compensation go for workplace injuries? So, Vanessa, what are we looking at when we're trying to figure out if an injury might be covered?

First, Matt, we want to remember that workers comp applies to all California employers who have at least one employee. Okay? So that's almost everyone, essentially. And it's going to cover all of the employees for the company, but it does not cover independent contractors. So those are kind of the main things that we want to first think about. And once coverage is established, the key question really becomes what types of events are going to be covered. Right. So an injury or an illness is going to be covered under workers compensation when it arises out of employment. So meaning that there's some job related risk or connection. And when it happens in the course of employment, meaning that it happened while the employee was doing their work. Here's the kicker though. The job doesn't have to be the only cause. So the job just needs to be a contributing cause to the injury or illness. And that's what makes this type of coverage so broad. I remember that I had a situation happen years ago when I was consulting where there was a construction company and they had an employee who they had told never to touch or use a nail gun, specifically told him never do this. Well, of course we know what the employee did, right? He picked up a nail gun and he accidentally shot himself with the nail through his hand. And even in that type of situation, the injury is going to be covered most of the time because workers comp is a no fault system. And so as long as the injury happened at work and was related to their job duties, and it's usually going to be covered now, there are some exceptions, but in this situation, the fact that the employee broke the rules doesn't mean it's not covered. That's not a valid exception.

Oh, my gosh, what a story. And I can't imagine a nail through my hand, Vanessa. That's incredible. So, speaking of stories, actually, we've got another story that came out of the California Court of Appeal that kind of discussed a really tricky coverage issue. And this happened in a case that was titled Zenith Insurance Company versus the Workers Compensation Appeals Board. And in this case, the dispute was over whether a worker who got injured while riding in a van pool on their commute that is going home from work, that was being run by a coworker, is that injury covered? And so, Vanessa, when we're looking at that case, what kind of lessons do we take away from that as we're kind of still trying to evaluate how broad coverage might go?

So this case really shows how broad and protective the workers compensation system can be, because the wcab, which is the Workers Compensation Appeals Board, they originally found that this injury was covered even though it was during a commute to work. And this shows how willing the system can be to interpret coverage really expansively when there's any possible connection to work. But the Court of Appeal ended up reversing this decision. They determined that this really was just an ordinary commute, not something that happened within the course or the scope of employment. And it wasn't happening for the benefit of the employer. So ultimately, it didn't end up meeting the criteria for coverage. But that being said, employers still need to think about situations like this where they fall into a gray area. Right. And in this case, this employer did the right thing because they reported the claim to their insurance carrier and they let the insurance make the call. And that's exactly what employers should be doing in situations where it's a gray area or where coverage really isn't that clear.

Okay, good. And I think that's a good segue really into the next question, which is, I have this. Workplace injury coverage may be clear, it may not be clear. We're not sure, but it might be covered. What does an employer need to do immediately upon being notified or discovering a workplace injury?

Oh, lots of things, Matt. So first, first thing, the most important thing is making sure the employee gets medical care right away. That's priority number one. So that's going to include, you know, giving them access to a doctor or a medical provider, whatever is needed based on the particular situation at hand. Then once that's taken care of or at least underway, employers want to complete and submit what's called the WDWC Form 5020 to their insurance carrier or if they're self insured, to the dir. And so we always want to make sure we're doing that paperwork. Now, if it's clear that the injury is going to cause lost time between beyond the day of the accident, or if treatment's going beyond first aid aid, then you need to do another form, the dwc, one form. And you must do that within one business day. Okay. So again, it's going to depend on the type of incident and how much treatment is involved. And speaking of that, employers don't want to forget about Cal osha because if the accident involves either serious injury, illness or death, they have to report it to Cal OSHA. And so deaths have to be reported within eight hours and then serious injuries or illnesses within 24 hours. So there's a lot of different requirements that employers have to remember.

Yeah. And I think it's really important to highlight all of that you discuss is happening within a day. So I mean, when we have these workplace injuries, it's really drop what you're doing and start checking your boxes in terms of filling out your forms, giving your forms to the employees and reporting things as necessary. So let's say we go to an employee who gets injured or they get an illness at the workplace, but then they tell you, vanessa, I don't want to seek treatment, I'm fine, leave me alone.

Sometimes that happens. So if you have a situation where the employee does not want to seek treatment, I'm going to say document. So you want to document what happened, when and where it occurred, who witnessed it. You're going to want to document that treatment was offered to the employee and that they declined it. Ideally, have the employee sign a written statement confirming that they're declining medical care. If they refuse to sign something like that, then document their refusal to sign. Right. Just document everything you can. The other thing employers want to think about in this situation is they may still need to report the injury to the work comp carrier, even if they don't end up filing a claim. So it's good to check with the work comp carrier just to make sure are there any reporting requirements and making sure that, you know, employer's following all of those requirements.

Okay. So in most cases, if an employee is injured, they're probably going to want treatment of some kind. And so something employers ask us often is what about pay? Right. Because there's a lot of confusion about what the workers compensation system is, what we do just generally know, is we need to protect employees who have suffered a workplace injury. And there's a lot of these things in place with regards to the system. But they'll ask us, do we have to pay for their time seeking medical treatment either the day of the injury? Or what about all these subsequent follow up appointments they're gonna have throughout the course of their claim? Do we have to pay for all that time too? How? Pay and time off generally work within the system.

So employers do need to pay the employee for the rest of their shift on the day that the injury or illness occurs. But after that, there's no pay obligation for time spent at follow up medical appointments and things like that, at least not from the employer. Right. That's what workers compensation is for, the insurance part of it. So that if the employee wants to get paid by the employer, they can use their sick leave PTO just like any other medical appointment after that first day of the injury.

Okay, so then comes what is literally the million dollar question for us, Vanessa? And definitely the most popular of all the questions. When a workplace injury takes the employees out for significant periods of time, we're talking, I need days, weeks, months off because of my workplace injury. How does the workers compensation system handle that length of leave?

All right, employers listen closely because this one gets screwed up a lot, unfortunately. So workers compensation provides a wage replacement and medical care that it provides money and medical care. Right. What it does not provide is job protection or a leave of absence. And we sometimes hear employers saying, oh, we have someone out on workers comp leave. But there actually is no such thing as workers comp leave. So we really want to understand that the job protected leave in these types of situations is going to come from other laws. It's going to come from things like FMLA or CFRA or disability leave rules. So employers need to assess whether those laws apply separately.

Okay, so what you're saying here is it's a leave request just like any other type of leave request. So it doesn't matter that it's a workplace injury. It's just matters that they're asking for leave and we, you know, administer that leave in the same rules that we had administered if, say, I needed a back surgery and it was unrelated to work. It's the same kind of deal here. But what employers keep running into through the workers compensation system is getting these doctor's notes that say over and over again they need to be out for 30 days. And when that 30 days is almost up another note that says 30 more days need to be taken and then another one. And now we're up to like five or six of these. So how do employers handle the balance between this workers compensation claim that is active and this employee who keeps submitting what feels like endless notes for leave requests?

So first, employers want to track and exhaust any applicable FMLA or CFRA leave. Okay. Then if that gets exhausted, employers need to engage in the interactive process under disability laws. But here's the key to think about. So while some additional leave beyond FMLA and CFRA can be a reasonable accommodation, indefinite leave is not. So that means, generally speaking, the employee can't just keep submitting open ended doctor's notes with no clear return to work timeline or keep extending. And at some point it's going to be appropriate for the employer to, to talk to the employee and ask them to get clarification from their doctor. You know, things like is there a projected return to work date or are there any restrictions that we can accommodate if they could come back, like part time or in a modified role? Right. So if we're asking those questions and we're getting the answer, that's essentially like, well, I don't know, maybe someday. But it's unclear. Those types of situations, typically an employer's not going to be required to just accommodate indefinitely. So in other words, you're allowed to assess whether this continued leave is reasonable, whether it's going to realistically get the employee back to work, whether it's creating an undue hardship on your company.

And I think that's concerning for employers because they hear that it sounds like they have the potential to deny leave to somebody with a workplace injury. And we've all heard that there are strong retaliation protections for either me as a worker saying I'm going to go file a claim, or I have actually filed a claim. So how do we avoid that retaliation provision of the workers compensation system if we're going to potentially deny their leave as unreasonable, as you discussed?

Yeah, that's such a good point, Matt. And that's a really valid concern because what you said is true. Labor code section 132Amakes it illegal to terminate, throw, threaten or discriminate against an employee because they have either filed or plan to file a worker's comp claim. So I think the key thing here for employers in these types of situations is they really want to separate the comp claim from the leave issue. If you're taking any kind of adverse action against an employee, like ending their employment Right. Due to indefinite leave extensions that they keep submitting. Make sure it's based on the leave issue on a legitimate business reason, not based on the comp claim itself. So some tips for employers. You want to document everything in these situations, stay consistent with how you're treating folks. And then if you're in doubt, you know, consult with legal counsel. Because these cases really can be like Matt, like you said, high risk and very fact specific. So, you know, err on the side of caution.

Yeah. Something I like to always say is they call it an interactive process for a reason when we're dealing with medical disability issues. So be interactive and document and have discussions, robust discussions with the employees. And at least this gives you the ability to put your best foot forward with whatever decision that you try to make. Well, Vanessa, I think this discussion provided a lot of clarity for employers handling workplace injuries or illnesses. Do you have any other practical tips for employers to follow through when they get a workplace injury at their workplace?

I do. So this tip, I think is really important. Everybody can benefit from hearing this. Stay in close contact with your workers. Comp claims administrator, they are going to be your key partner in managing these claims. They're going to help you understand the next steps, the timelines. They're going to be your guide. So reach out to them proactively. You know, if you have questions about the claim situation and things that you're dealing with. Some other best practices, really more workplace specific are employers should think about assigning one point person to really be the one that's managing these injuries and illnesses, making sure the paperwork is completed properly. All of these steps are being taken. Right. So have somebody who owns that in your workplace. The other thing you can do is hold regular safety meetings and make sure that employees know how important it is to report concerns, to report their injuries and illnesses right away. You can monitor your workplace for hazards, especially after an incident. Right. You kind of want to do a debrief and assess like, hey, how did this happen and how can we prevent it going forward? And then last thing I want to say is make sure your employees are taking their breaks. Right. A lot of injuries happen when people are rushed, when they're tired, when they're skipping their rest breaks or things like that. So that can help lower your injuries in your workplace. And also, side note, California has really strict laws around meal and rest breaks, so we want to make sure we're following those as well. So I think just being really proactive on safety, being responsive when something goes wrong, those are really the best ways to protect both your employees and your business.

Well, Vanessa, thank you for taking some time out of your day to discuss these workers compensation concerns.

Oh, you're welcome, Matt. Pleasure to be here and thank you.

Listeners, for joining this discussion on the workplace. Please share and subscribe to Cal Chamber's podcast by visiting calcham.