Beware ‘injury discrimination’ suits for failing to treat injured workers like other employees

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in FMLA Guidelines,Human Resources

California law makes it illegal for employers to discriminate against employees who are hurt at work.

To prove discrimination, employees have to show they were injured at work and that their employer caused them to suffer harm because of the injury.

For example, if an employer requires those hurt at work to use vacation time for medical appointments while other employees can take sick leave, that would be illegal discrimination.

Recent case: Paul Fowler hurt his neck while working for Gelson’s Supermarkets and underwent surgery. Fowler wanted to return to work as soon as possible and his doctor released him with some restrictions.

The company called the doctor and learned that he really believed Fowler should stay off work longer. Therefore, Gelson’s refused to let Fowler return. It finally allowed him back after an independent evaluation and medical clearance.

Fowler sued, alleging discrimination based on his on-the-job injury.

The Court of Appeal of California rejected his case. It reasoned that, while Fowler was hurt on the job and suffered an adverse consequence (namely not being permitted to return to work despite getting his doctor’s clearance), he could not show that another employee who wasn’t injured at work would have been able to return to work despite his doctor’s opinion. (Gelson’s Markets v. Fowler, No. B209336, Court of Appeal of California, 2nd Appellate Division, 2009)

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