BILL NUMBER: SB 942 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 29, 2007
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 amended, 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 employee is
willing and available to return to work, "there is a rebuttable
presumption that an employer has discriminated against an employee if"
here the employer refuses to reinstate the employee to his or
her regular position with full wages and benefits within one
working day 5 working days 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 others
being increased due to the effects of the injury or
illness . The bill would provide that it shall also be
a violation of those provisions for be presumed that
an employer has discriminated against an employee in
violation of these provisions if the employer requires the
to require an employee to perform additional
physical duties that were not required of the employee prior to his
or her injury or illness as a condition for returning to
employment . By creating a new crime, the bill would impose
a state-mandated local program , unless the
additional physical duties are reasonably required to accommodate
the employee's disability .
(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
compensable disability within 60 days after the disability
becomes 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 60
days of the disability becoming permanent and stationary, the
employer offers the injured employee regular work,
modified work, or alternative work, and 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
no . State-mandated local program: yes
no .
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.
(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
(4) (A) If, after
the employee has been disabled by an injury or illness arising
out of, or in the course of, employment, the employee is
willing and available to return to work, it shall be presumed that an
employer has discriminated against an employee in violation of
paragraph (1) if the employer refuses to reinstate the employee
to full wages and benefits within one working day
five working days 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
being increased due to the effects of the injury or
illness. This presumption is rebuttable and may be controverted
by other evidence, but unless so controverted, the appeals board is
bound to find in accordance with it.
(B) It shall be presumed that an employer has discriminated
against an employee in violation of paragraph (1) if the employer
requires the employee to perform additional physical duties that the
employee was not required to perform prior to the injuries or illness
as a condition of returning to work, unless the additional physical
duties are reasonably required to accommodate the employee's
disability. This presumption is rebuttable and may be controverted by
other evidence, but unless so controverted, the appeals board is
bound to find in accordance with it.
(B)
(C) 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. Nothing in this paragraph shall preclude an
employer from objecting to the opinion of the treating physician
pursuant to Section 4062 or from obtaining an opinion from an agreed
medical evaluator or qualified medical evaluator pursuant to that
section if the employer pays the employee his or her full wages and
benefits due for that period. The report of the agreed medical
evaluator or qualified medical evaluator shall be based on an
in-person physical examination of the employee. If the report of the
agreed medical evaluator or the qualified 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 without the risk
of further injury or illness to the employee or the risk of injury
to others being increased due to the effects of the injury or
illness, then the employer shall have no further obligation to pay
the employee full wages and benefits pursuant to this paragraph for
any period after the date of service of the report, and the employer
shall not be liable for penalties for a violation pursuant to this
paragraph. Where the report of the agreed medical evaluator or the
qualified medical evaluator does not concur with the report from the
treating physician, the employee shall not be liable for the
repayment of any wages, benefits, or penalt y moneys
received.
(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.
(5) It shall be presumed that an employer has discriminated
against an employee in violation of paragraph (1) if the employer
denies an employee the right to predesignate a treating physician in
accordance with subdivision (d) of Section 4600 prior to injury or
illness or denies an employee the right to see his or her properly
predesignated physician or a medical provider to whom the
predesignated physician has referred the employee after the injury or
illness.
(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 3201.7.
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:
(A) Up to four thousand dollars ($4,000) for permanent partial
disability awards of less than 15 percent.
(B) Up to six thousand dollars ($6,000) for permanent partial
disability awards between 15 and 25 percent.
(C) Up to eight thousand dollars ($8,000) for permanent partial
disability awards between 26 and 49 percent.
(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 compensable 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 within
60 days after the disability becomes permanent and stationary, the
employee shall be entitled to 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). schools. The maximum
amount of the voucher available for the payment of tuition, fees,
books, and other expenses required by the school in any one semester,
in any one quarter, or in any other academic term into which the
school divides the academic year shall be prorated for the academic
term at a rate not to exceed five thousand dollars ($5,000) per year.
(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 from the date the injury is determined
to be permanent and stationary, of the date of the
last payment of temporary disability 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) 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: job displacement benefit within
60 days of the disability becoming permanent and stationary if the
employer offers the injured employee regular work, modified work, or
alternative work in the form and manner prescribed by the
administrative director, lasting for a period of at least 12 months.
(a) Within 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 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.