Q: WHILE driving back to the office from a work errand for my Manager, my car was rear ended. I sustained injuries as a result of which I underwent surgeries. I missed work for weeks but will need more time off for treatments. I am afraid to tell my employer about my need for more time off because I might be fired. What should I do?
A: You do not have to inform the employer of the full extent of your injuries but you must immediately notify your Manager of the need for more medical treatments that may require employer accommodation. In this way, you are protected from any adverse action that may be taken against you at work. Your silence may work against you,
Once notified of your need for more treatments related to a medical condition, including the submission of a medical certification, the employer is obligated by law to engage you in a timely, good faith interactive process to determine if reasonable accommodation can be made. Accommodation can consist of giving you additional leave to allow recovery or allow shorter work hours to accommodate your physical limitation.
There are several instances where an employee’s personal injuries (whether these injuries happened at work or outside work) lead to violations of the employee’s rights. Consider the following situations:
- The employer denied the employee’s request to take time off to undergo treatments. Employers with 5 or more employees are prohibited from denying the right to use medical leave, or for disciplining, discharging, demoting, suspending, or discriminating against an employee for using such leave for themselves (or to attend to an ill family member).
- The employer denied the employee’s request for reasonable accommodation. The employer must engage in a timely, good faith interactive process to determine if reasonable accommodation can be made for a disabled employee to accommodate restrictions. Sometimes, granting an additional short-term extension of an approved leave may constitute reasonable accommodation.
- After filing a request for family or medical leave (or after filing a worker’s compensation claim), the employee experiences an adverse employment action, such as demotion, decrease in pay, decrease of work hours, loss of benefits, assignment to unfavorable tasks, suspension, or termination. Such actions violate California law.
- The employer retaliates against the employee for filing a worker compensation claim, or some other claim, by withholding the payment of all the employee’s wages due on the last day of employment. The employer must immediately pay all compensation due, and ensure that the employee receives the payment.
- After the employee requests intermittent leave or comes back from leave, the employee experiences an adverse employment action such as being assigned to unfavorable assignments, given difficult-to-achieve deadlines, being written up, demoted, stripped of supervisory responsibilities, laid-off, or fired.
- The employee was fired for “excessive absences” even though the employee provided doctor’s notes for these absences.
Employees who have been seriously injured face difficult challenges, including having to miss work in order to get treatments. These efforts to get the employees’ health back to rejoin the workforce is protected by law.
If the employee was fired based on a disability or medical condition, the employee can sue for wrongful termination. The employee may be entitled to the following: reinstatement, back pay, loss of earnings, damages for emotional distress, attorneys’ fees and costs, and punitive damages in certain instances.
The above claims are properly handled by an employment attorney. In this instance, however, you seem to have been injured while you were in the course and scope of your employment. You are entitled to additional rights under Workers’ Compensation laws. While this author is an experienced employment attorney, our law firm usually works with a Workers Compensation attorney to further assist and enforce the rights of the injured employee.
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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer for 10 years by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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