BILL NUMBER: SB 942 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Migden
FEBRUARY 23, 2007
An act to amend Sections 132a, 3201.81, 4658.5, and 4658.6 of the
Labor Code, relating to workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
SB 942, as introduced, Migden. Workers' compensation.
(1) Existing Workers' Compensation Law requires employers to
secure the payment of workers' compensation, including medical
treatment, for injuries incurred by their employees that arise out
of, or in the course of, employment. Existing law declares that it is
the policy of this state that there should not be discrimination
against workers who are injured in the course or scope of their
employment.
This bill would provide that there is a rebuttable presumption
that an employer has discriminated against an employee if, after the
employee has been disabled from work as a result of injury or illness
arising out of, or in the course of, employment pursuant to which
the employee is eligible to receive workers' compensation benefits,
the employer refuses to reinstate the employee to his or her regular
position with full wages and benefits within one working day after
receipt of a written statement by the employee's treating physician
that the employee is able to perform the full requirements of the
employee's regular position, notwithstanding the inherent risks of
the position, without risk of further injury to the employee or other
employees in the workplace. The bill would make it a misdemeanor for
an employer to refuse to reinstate an employee to his or her
preinjury position pursuant to these provisions. The bill would
provide that it shall also be a violation of those provisions for an
employer to require an employee to perform additional physical duties
that were not required of the employee prior to his or her injury as
a condition for returning to employment. By creating a new crime,
the bill would impose a state-mandated local program.
(2) Existing law provides for the payment of temporary disability
indemnity payments to any injured employee under specified
circumstances, with certain exceptions, and provides that, if an
injury causes permanent partial disability and the injured employee
does not return to work for the employer within 60 days of the
termination of temporary disability indemnity payments, the injured
employee shall receive a supplemental job displacement benefit, as
specified. Existing law further provides that an employer shall not
be liable for supplemental job displacement benefits if, within 30
days of termination of temporary disability indemnity payments, the
employer offers, and the employee rejects, or fails to accept, in the
form and manner prescribed by the administrative director, modified
work, accommodating the employee's work restrictions, lasting at
least 12 months.
This bill would, instead, provide that, for injuries occurring on
or after January 1, 2008, if the injury causes permanent partial
disability and the injured employee does not return to work within 60
days from the date an injury is determined to be permanent and
stationary, the employee shall receive a supplemental job
displacement benefit, and would revise the amounts of benefits an
injured employee would be eligible to receive, as specified.
(3) Existing law provides that the employer shall not be liable
for the supplemental job displacement benefit if, within 30 days of
the termination of temporary disability indemnity benefits, the
employer offers, and the employee rejects, or fails to accept,
modified or alternative work, as specified.
This bill instead would provide that an employer shall not be
liable for supplemental job displacement benefits if, within 10 days
of the date the injury is determined to be permanent and stationary,
the employee rejects, or fails to accept, modified or alternative
work. It would also make a technical, clarifying change.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 132a of the Labor Code is amended to read:
132a. (a) It is the declared policy of this
state that there should not be discrimination against workers who
are injured in the course and scope of their employment. It is
further the policy of this state that there should not be
discrimination against employees who attempt to exercise their rights
under subdivision (d) of Section 4600.
(1)
(b) (1) Any employer
who discharges, or threatens to discharge, or in any manner
discriminates against any employee because he or she has filed or
made known his or her intention to file a claim for compensation with
his or her employer or an application for adjudication, or because
the employee has received a rating, award, or settlement, is guilty
of a misdemeanor and the employee's compensation shall be increased
by one-half, but in no event more than ten thousand dollars
($10,000), together with costs and expenses not in excess of two
hundred fifty dollars ($250). Any such employee shall also be
entitled to reinstatement and reimbursement for lost wages and work
benefits caused by the acts of the employer.
(2) Any insurer that advises, directs, or threatens an insured
under penalty of cancellation or a raise in premium or for any other
reason, to discharge an employee because he or she has filed or made
known his or her intention to file a claim for compensation with his
or her employer or an application for adjudication, or because the
employee has received a rating, award, or settlement, is guilty of a
misdemeanor and subject to the increased compensation and costs
provided in paragraph (1).
(3) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because the employee
testified or made known his or her intentions to testify in another
employee's case before the appeals board, is guilty of a misdemeanor,
and the employee shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer.
(4) (A) It shall be presumed that an employer has discriminated
against an employee in violation of paragraph (1) if, after the
employee has been disabled by an injury or illness arising out of, or
in the course of, employment, the employer refuses to reinstate the
employee to full wages and benefits within one working day after
receipt of a written statement by the treating physician that the
employee is able to perform the full requirements of the employee's
regular position, notwithstanding the risks inherent in the position,
without a risk of further injury to the employee or others. This
presumption is disputable and may be controverted by other evidence,
but unless so controverted, the appeals board is bound to find in
accordance with it.
(B) Any employer who refuses to reinstate an employee to his or
her preinjury job in accordance with the requirements of this section
is guilty of a misdemeanor, and shall pay a penalty of one hundred
dollars ($100) per day for each day the employer is in violation of
this paragraph, plus the employee's full wages and benefits. It shall
also be a violation of this section for an employer to require an
employee to perform additional physical duties that the employee was
not required to perform prior to the illness or injury as a condition
of returning to work. Nothing in this paragraph shall preclude an
employer from seeking an alternative opinion from an agreed medical
evaluator pursuant to Section 4062 if the employer continues to
reinstate the employee to his or her position with full wages and
benefits. The report of the agreed medical evaluator shall be based
on an in-person physical examination of the employee. If the report
of the agreed medical evaluator states that the employee is unable to
perform the full requirements of the employee's regular position, or
is unable to perform the full requirements of the employee's regular
position, notwithstanding the inherent risks of the position,
without risk of further illness or injury to the employee or to
others then the employer shall be released from any further
obligation to reinstate the employee to full wages and benefits
pursuant to this paragraph and shall not be liable for penalties for
a violation of this section.
(4)
(5) Any insurer that advises, directs, or
threatens an insured employer under penalty of cancellation or a
raise in premium or for any other reason, to discharge or in any
manner discriminate against an employee because the employee
testified or made known his or her intention to testify in another
employee's case before the appeals board, is guilty of a misdemeanor.
Proceedings
(6) Proceedings for increased
compensation as provided in paragraph (1), or for reinstatement and
reimbursement for lost wages and work benefits, are to be instituted
by filing an appropriate petition with the appeals board, but these
proceedings may not be commenced more than one year from the
discriminatory act or date of termination of the employee. The
appeals board is vested with full power, authority, and jurisdiction
to try and determine finally all matters specified in this section
subject only to judicial review, except that the appeals board shall
have no jurisdiction to try and determine a misdemeanor charge. The
appeals board may refer and any worker may complain of suspected
violations of the criminal misdemeanor provisions of this section to
the Division of Labor Standards Enforcement, or directly to the
office of the public prosecutor.
SEC. 2. Section 3201.81 of the Labor Code is amended to read:
3201.81. In the horse racing industry, the organization certified
by the California Horse Racing Board to represent the majority of
licensed jockeys pursuant to subdivision (b) of Section 19612.9 of
the Business and Professions Code is the labor organization
authorized to negotiate the collective bargaining agreement
establishing an alternative dispute resolution system for licensed
jockeys pursuant to Section 3201.8 3201.7
.
SEC. 3. Section 4658.5 of the Labor Code is amended to read:
4658.5. (a) (1) Except as provided in
Section 4658.6, if the injury causes permanent partial disability and
the injured employee does not return to work for the employer within
60 days of the termination of temporary disability, the injured
employee shall be eligible for a supplemental job displacement
benefit in the form of a nontransferable voucher for
education-related retraining or skill enhancement, or both, at
state-approved or accredited schools, as follows:
(1)
(A) Up to four thousand dollars ($4,000) for
permanent partial disability awards of less than 15 percent.
(2)
(B ) Up to six thousand dollars ($6,000) for
permanent partial disability awards between 15 and 25 percent.
(3)
(C) Up to eight thousand dollars ($8,000) for permanent
partial disability awards between 26 and 49 percent.
(4)
(D) Up to ten thousand dollars ($10,000) for permanent
partial disability awards between 50 and 99 percent.
(2) Except as provided in Section 4658.6, for injuries occurring
on or after January 1, 2008, if the injury causes permanent partial
disability and the injured employee does not return to work for the
employer within 60 days from the date an injury is determined to be
permanent and stationary, the employee shall be eligible for a
supplemental job displacement benefit in the form of a
nontransferable voucher for education-related retraining or skill
enhancement, or both, at state accredited schools, in the amount of
two thousand five hundred dollars ($2,500) per semester for each
semester an injured employee is actually enrolled in a state-approved
or accredited school. The voucher shall not exceed a total amount of
ten thousand dollars ($10,000).
(b) The voucher may be used for payment of tuition, fees, books,
and other expenses required by the school for retraining or skill
enhancement. No more than 10 percent of the voucher moneys may be
used for vocational or return to work counseling. The administrative
director shall adopt regulations governing the form of payment,
direct reimbursement to the injured employee upon presentation to the
employer of appropriate documentation and receipts, and any other
matters necessary to the proper administration of the supplemental
job displacement benefit.
(c) Within 10 days of the last payment of temporary
disability from the date the injury is determined to
be permanent and stationary , the employer shall provide to the
employee, in the form and manner prescribed by the administrative
director, information that provides notice of rights under this
section. This notice shall be sent by certified mail.
(d) This Except as provided in
paragraph (2) of subdivision (a), this section shall apply to
injuries occurring on or after January 1, 2004.
SEC. 4. Section 4658.6 of the Labor Code is amended to read:
4658.6. The employer shall not be liable for the supplemental job
displacement benefit if the employer meets either of the following
conditions:
(a) Within 30 days of the termination of temporary
disability indemnity payments 10 days of the date the
injury is determined to be permanent and stationary , the
employer offers, and the employee rejects, or fails to accept, in the
form and manner prescribed by the administrative director, modified
work, accommodating the employee's work restrictions, lasting at
least 12 months.
(b) Within 30 days of the termination of temporary
disability indemnity payments 10 days of the date the
injury is determined to be permanent and stationary , the
employer offers, and the employee rejects, or fails to accept, in the
form and manner prescribed by the administrative director,
alternative work meeting all of the following conditions:
(1) The employee has the ability to perform the essential
functions of the job provided.
(2) The job provided is in a regular position lasting at least 12
months.
(3) The job provided offers wages and compensation that are within
15 percent of those paid to the employee at the time of injury.
(4) The job is located within reasonable commuting distance of the
employee's residence at the time of injury.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.