Managing Employee Injuries and Disability and Occupational Safety

uniform application of a rule applied to all injured employees. In this case, a deputy sheriff sustained industrial injuries to his spine. While he was receiving Section 4850 benefits, the County recognized that it was unlikely that his injuries would enable him to return to work. The officer was “demoted” from the position of Deputy Sheriff II to the position of Deputy Sheriff I. As a consequence of the “demotion,” the officer received a lower rate of benefits under Section 4850. The court rejected the contention that the officer had to show that he had been discriminated against vis-à-vis another similarly situated officer. Rather, the court agreed with the analysis that the reduction of status, as well as reduction in 4850 benefits post-injury, were entirely a result of the disability and therefore these changes violated the officer’s rights under Section 132a. The court rejected the County’s claim that no discrimination had occurred because the reassignment policy was applied across the board to all disabled officers, whether the disability was industrial or non-industrial. The case of Smith v. WCAB , 54 gave further definition to the business necessity defense. In that case, an employee (Smith) worked in a winery. Smith had incurred an industrial injury, and received a permanent disability rating. The employee was subsequently fired for alleged violation of a company rule which authorized a discharge upon two consecutive non-reported absences from work. One of the employer’s supervisors testified at the hearing that employees who violated the rule were always fired if they had no “reasonable excuse for not being discharged.” The facts show that the employee’s physician had recommended that she enter the hospital for tests related to her industrial injury. Smith was absent on two days because of the scheduled tests. There was evidence that the employer knew of the scheduled tests because its benefit administrator had refused to authorize the tests. A meeting was scheduled for a few days later with representatives of the employer to discuss authorization for the additional medical tests. In the meantime, a representative of the employer called Smith to inquire why she had not reported the absences. Smith contended that she had in fact reported the absences. There was also evidence that Smith’s husband had telephoned to report her impending absence. On the date that Smith was meeting with company representatives to discuss the disputed medical tests, she was served with notice that her employment was being terminated for violating the two-absence rule. The Board found that the employer had uniformly applied the two-absence rule to all employees, and therefore no discrimination had occurred. The Court of Appeal annulled the Board’s decision. It reasoned that there was evidence from which the Board could conclude that the employer’s conduct, although ostensibly based on strict application of its two-absence rule, had invoked the rule as a pretext for unlawful discrimination. The court reasoned that actions triggered by the industrial injury work to the detriment of the claimant, unless necessitated by “the realities of doing business” prohibited by Section 132a. Procedurally, the court held that the employee had the burden of initially showing that the employer’s actions were detrimental, the action, and its cause. The burden then shifts to the employer to prove an affirmative defense of business realities. The court commented that any evidence tending to prove that the employer’s invocation of the two-absence rule was not properly applied worked to weaken the employer’s

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 65