When you are injured on the job in California and are unable to return to work, you can make a WC claim, and they will pay you benefits that matches two-thirds of your weekly pay when you were working (up to a certain cap which in 2019 is $1,242.78) and your medical bills. After the doctor clears you to work, then you have the option of returning to work.
Do I have to return to work after workers comp?
Under California’s WC laws, once you are injured and the doctor says you have a temporary total disability, then you don’t have to go back to work at this point. Once the doctor says your able to return, then you can return, but are not required to do so. If you choose not to, your employer can terminate you, and your weekly benefits will stop, but they will still be required to pay for your continued medical treatment, if applicable, and any permanent disability.
Can you lose your job while on workers comp?
If your employer terminates you because you filed a WC claim, then you can make a wrongful discharge claim. In California, there are two ways you can do this. First is to file a “132a” claim which is a claim under the California Labor Code Section 132a. This says that if an employer discriminates against a worker because of their work injury, then the employer is guilty of a misdemeanor and can be made to pay:
- increased workers’ compensation benefits up to $10,000,
- reinstatement if he or she was wrongfully terminated,
- recovery of lost wages.
A claim must be made within one year of the date of discrimination or termination. It is filed with the Worker’s Compensation Appeals Board which will decide the claim.
A second way is the file a claim under California’s Fair Employment and Housing Act (FEHA) in civil court. This can be done even if the injured person has filed a 132a claim. This is also based on being discriminated against for filing a WC claim. If your employer is found to have discriminated, then it must pay:
- past lost earnings
- future lost earnings
- emotional distress
- punitive damages (only awarded if employer is shown to have acted in bad faith).
- attorney fees
If you win the 132a claim and the FEHA claim, then the award you got in the 132a claim will be deducted from you FEHA award.
Does my employer have to hold my job?
Yes, if you are cleared to work the same job from your doctor, then your employer has to let you come back to work. If your doctor says you can go back to work but not at the same job because of restrictions, then the employer can offer you assistance to do your old job such as equipment to allow you to meet your doctor’s restrictions. Or you employer can offer you a different job altogether that meets your restrictions, but it must pay at least 85% of your previous pay.
If your employer doesn’t offer you assistance to do your old job or offer you a new job, then you can continue to collect your weekly TTD pay and receive work training benefits.
What if I can’t work, but my employer says I have to?
If your employer says that you have to do your same job and your doctor has given you restrictions, you can refuse to do the work until the restrictions are lifted by the doctor, and you will continue to get your weekly benefits in the meantime.
If you employer then fires you for not coming back to work, then you can continue to get weekly benefits and file a wrongful discharge claim.