Back injuries are some of the most common types of injuries for working adults in the United States. Back injuries are also a very common type of work injury, legally called an “industrial injury”. Moreover, many employees are unlawfully terminated each year due to back injuries even though the employee could be reasonably accommodated. This article discusses what your rights and options are under the California Fair Employment and Housing Act as an employee with a back injury.
What is Disability Discrimination?
In order to understand the employment repercussions of a back injury, it is necessary to understand disability discrimination. The California Fair Employment and Housing Act (“FEHA”) prohibits, among many other types of discrimination, discrimination based upon disability. Unfortunately, disability discrimination is a highly misleading name and does not describe what is actually unlawful. In California, it is legal to terminate an employee who cannot perform the essential functions of his or her job because of physical or mental health reasons. However, it is unlawful for the same employer to do so if the employee can perform the essential functions of his or her job with or without reasonable accommodations, notwithstanding the employee’s health condition. In other words, if the injured or sick employee can continue to perform the job with accommodations, it is unlawful to fire that employee. Showing that an employer hates or dislikes disabled or injured employees is not required, and in this way disability discrimination has nothing to do with true “discrimination” at all.
Nor is it required that the employee is “disabled” in the ordinary sense of the term. For purposes of the California Fair Employment and Housing Act, a “disability” merely means that working or any other major life activity is “difficult” because of the employee’s medical issue. Having back pain, lumbago, a lumbar sprain, a bulging disk, sciatica, or spondylosis should all readily meet this standard under the California Fair Employment and Housing Act.
Does it matter if my back injury happened at work?
The California Fair Employment and Housing Act (“FEHA”) applies to all employers with five or more employees, all governmental entities, and all public school districts. There is no requirement that the underlying back injury originated at work. So long as the employee works for an employer with five or more employees and has a back injury that makes working “difficult”, the FEHA will apply.
That said, oftentimes work-related back injuries bypass common employment law traps that an employee with a nonwork-related back injury faces. This includes the issue of “employer notice”. In the context of disability discrimination “notice” simply means that the employer must actually be aware (i.e. “be on notice”) that the employee has a back injury and that working is now difficult for the employee. Work-related back injuries are often immediately reported to supervisors, human resources departments, or result in workers' compensation claims and typically bypass any potential employer-notice problem. In contrast, employees who are secretly battling back pain or other medical conditions under the radar must actually put their employer on notice that they are dealing with a medical issue that is causing problems for them at work. Employees who fail to do this will not trigger their employer’s rigorous obligations under the California Fair Employment and Housing Act, including the obligation to accommodate the employee.
What happens at work if I have a back injury?
Employers on notice that an employee has suffered a back injury or related medical issue are required to engage in a timely and good faith problem solving dialogue with the employee called an “interactive process”. An interactive process can occur in-person, by email, by phone, or by a combination of these methods. Moreover, an interactive process is not necessarily concluded in a single “one-and-done” meeting, but may last over a prolonged period of time and/or be renewed when the employee’s medical limitations or accommodation needs change.
The legal purpose of the interactive process is for the employer to accurately answer three questions:
First, the employer must identify what the employee’s precise job-related medical restrictions actually are. By understanding clear and updated medical notes, as well as information from the employee, the employer must correctly identify what the employee’s relevant medical restrictions are. In the context of a back injury, this can include identifying whether the employee is limited in his or her ability to lift, if the employee is prohibited or limited in his or her ability to bend, stoop, or perform other movements because of that back injury.
Second, the employer must identify what precise job-related functions are impacted by the employee’s medical limitations. In other words, what exactly about the employee’s underlying job would be problematic in light of the medical restrictions, if any? In the context of back injuries, commonly affected essential job functions can include lifting, pushing, or pulling, or requirements that the employee remain seated or standing for extended periods of time.
If the employer reaches an incorrect conclusion about the first or second question, the employer may be liable for disability discrimination if the employer - and not the employee - was responsible for the breakdown of the interactive process. Although both the employer and employee are legally obligated to participate in the interactive process in good faith, only the employer is potentially liable for its breakdown.
Third, if the employee actually has or is believed by the employer to have job related medical limitations that impact essential job functions, the employer and employee must identify potential reasonable accommodations. Accommodations are more readily understood as adjustments or modifications for how the underlying job is performed. Accommodations are deemed “reasonable” if they are effective and do not constitute an “undue hardship” on the employer.
Lastly, while the interactive process is supposed to occur in good faith, employers will often feign going through the motions, but in reality intend on terminating the employee no matter what occurs. This is especially the case of public school districts and employees who are placed on the 39-Month Re-Employment List.
What are common accommodations for employees with back injuries?
A plethora of potential reasonable accommodations exist for employees with back-related injuries. Since no official or comprehensive list of accommodations exists, employees and employers must consider any possible adjustment or modification that 1) reduces an employee’s back pain, and/or 2) that enables the employee to perform the underlying essential functions of the job.
Employees with back injuries will frequently be given lifting restrictions. These restrictions will be transmitted to the employee on a regular doctor’s note, a physician’s progress report, or a Physician’s Return-to-Work & Voucher Report if the employee has gone through a Qualified Medical Examination (“QME”) or Agreed Upon Medical Examination (“AME”). Lifting restrictions will either prohibit the employee from lifting more than a specific amount of weight no matter what (for example, no lifting more than 30 pounds) or will allow the employee to lift a specific amount of weight but for only for a certain amount of time or number of repetitions (no lifting 30 pounds more than 2 hours per day). Lifting limitations can also be imposed through more vague and generalized language, such as “no repetitive lifting”, “avoid heavy lifting”, or “no frequent lifting”. In the latter case, it is important for the employee to obtain more specific medical guidance to prevent an unlawful termination by overly cautious employers.
Reasonable accommodations for lifting restrictions can include team lifting, or allowing the employee to seek assistance when lifting objects that are heavier than what the employee is medically allowed. This accommodation can typically be readily accommodated if the employee works alongside other employees or is within phone or radio contact with other employees. Notably, many employers, especially public school districts and governmental employers, already have secret policies and safety trainings that encourage or require employees to receive help when lifting objects of any weight deemed unilaterally too heavy by the employee.
Relatedly, lifting accommodations can also include the lightening of loads. For example, even if a forty pound box is too heavy for an employee to lift alone, allowing the employee to split the box into two, twenty pound carries can be a reasonable accommodation.
Reasonable accommodations can also include the use of tools or equipment that allow for heavier lifting or reduced physical strain on the employee. This can include the use of dollies, trash pickers, grabber sticks, desk movers, or other objects that reduce bending. Notably, employers have the obligation to purchase this equipment unless doing so would be considered an undue hardship.
Lastly, employees with back injuries are often given restrictions that require the employee to sit-to-stand as needed, that require intermittent breaks from standing or sitting, or require stretch breaks. These restrictions are typically done to alleviate back pain from prolonged sitting or standing. These restrictions can be accommodated through the use of additional short breaks of five minutes or less each hour, by providing a chair, or by providing an adjustable standing desk to the employee.
What happens if my back injury cannot be accommodated?
If an employee legitimately cannot be accommodated due to a back injury, the employee may be legally terminated, or in the case of a public school district be placed on its 39-Month Re-Employment List. However, employers are often in a rush to terminate injured employees, fail to properly consider potential effective accommodations, or simply misinterpret or overexaggerate the employee’s medical limitations. In other words, a termination does not mean the employer did things in a legally correct way.
What should I do if I have a back injury?
An employee’s course of action depends on if accommodations are needed or if medical restrictions have actually been imposed. Employees in actual need of accommodations should consider making their employer aware of their underlying injury and their need for accommodations before poor performance allegations are made.
Because employers often overexaggerate medical limitations, the employee should also begin building a written record with the employer by email. Through email, the employee should explain that he or she can continue performing the job successfully, that the medical limitations are minor in nature, and that simple accommodations exist that allow him or her to continue working.
Lastly, employees facing any level of employer-opposition to medical limitations or accommodations should proactively contact a plaintiff’s employment lawyer who has experience in the area of disability discrimination.
What shouldn’t I do as an employee with a back injury?
There are three big things that an employee with a back injury should not do. First, unless no potential reasonable accommodations or internal job transfers exist (called “reassignment accommodations”) employees should not go on a leave of absence. Although a leave of absence can be a reasonable accommodation temporarily, they are typically unpaid and employers do not have to offer them for very long periods of time. Moreover, lazy employers will often force employees onto a leave of absence even when reasonable accommodations are available. Employees on an unnecessary leave of absence should work closely with their doctor and their employer and return to work as soon as possible.
Next, even if reasonable accommodations have been denied or if the employer is engaging in unlawful behavior, the employee should typically not file an internal grievance or an internal appeal of an employer’s accommodation decision. This is typically an option for employees that work for public school districts or employees that work for a state or local governmental entity. Doing so will rarely be effective and can foreclose on the employee’s ability to sue in regular court later on.
Lastly, employees who have been terminated from their job due to a claimed inability to accommodate should typically not apply for California State Disability Insurance or even private disability benefits. This is because an application for State Disability Insurance requires the employee to verify under penalty of perjury that he or she is too injured to work. Because disability discrimination ultimately requires the employee to prove that he or she could work, albeit with possible accommodations, that insurance application can be used as evidence against the employee in a later lawsuit. Employers and their workers' compensation insurance adjusters know this and will often assist terminated employees in filling out disability insurance applications. Employees should contact an attorney before filling out an application for disability benefits.
Is your job being threatened because of a back injury? Contact the Law Office of Brian Mathias today.