BILL NUMBER: SB 942 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 8, 2007
AMENDED IN SENATE APRIL 18, 2007
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 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
the employer refuses to reinstate the employee to his or her regular
position with full wages and benefits within 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 being
increased due to the effects of the injury or illness. The bill would
provide that it shall be presumed that an employer has discriminated
against an employee in violation of these provisions if the employer
requires the require an employer to reinstate an
employee to his or her preinjury job within 5 working days after
receipt of a written statement by the treating physician that the
employee is able to perform the essential functions of the employee's
regular position, notwithstanding the risks inherent in the
position, without a ri sk of further injury to the
employee due to the effects of the injury or illness, and when the
employee is willing and available to return to work. The
bill would provide that if the employer refuses to reinstate such an
employee to his or her preinjury job, the employer shall be required
to reimburse the employee for lost wages and work benefits. The bill
would prohibit an employer from requiring 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, unless the additional physical duties are
reasonably required to accommodate the employee's disability.
The bill would require an employer to reimburse the employee for lost
wages and work benefits for any time that the employee is unable to
work due to the imposition of additional physical duties that are not
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 for the
employer 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, the employee rejects, or fails to accept,
modified or alternative work. It would also make a technical,
clarifying change.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: 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) 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 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 being increased due to the effects
of the injury or illness. This presumption is rebuttable and may be
controverted by a preponderance of the evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it.
(4) (A) An employer shall reinstate an employee to his or her
preinjury job within five working days after receipt of a written
statement by the treating physician that the employee is able to
perform the essential functions of the employee's regular position,
notwithstanding the risks inherent in the position, without a risk of
further injury to the employee being increased due to the effects of
the injury or illness, and where the employee is willing and
available to return to work. If an employer refuses to reinstate such
an employee to his or her preinjury job, the employer shall be
required to reimburse the employee for lost wages and work benefits.
(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
(B) No employer shall require an
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.
An employer shall reimburse the employee for lost wages and work
benefits for any time that the employee is unable to work due to the
imposition of additional physical duties that are not reasonably
required to accommodate the employee's disability.
(C) Any employer who refuses to reinstate an employee to his or
her preinjury job in accordance with the requirements of this section
shall pay a civil 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 , and
the employee shall be entitled to reimbursement for lost wages and
work benefits. 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 section.
However, the employee shall continue to be entitled to reimbursement
for lost wages and work benefits during the time an employer is
objecting to the opinion or obtaining an opinion from an agreed
medical evaluator or qualified medical evaluator . 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 essential functions of the
employee's regular position, or is unable to perform the
full requirements essential functions of the
employee's regular position without the risk of further injury or
illness to the employee 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
lost wages and work benefits 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 penalty moneys received
lost wages or work benefits received
pursuant to this section .
(5) Any insurer that advises, directs, or threatens an insured
employer, under penalty of cancellation, a raise in premium, or for
any other reason, to discharge or in any manner discriminate against
an employee because the employer testified or made known his or her
intention to testify in another employee's case before the appeals
board, is guilty of a misdemeanor.
(6) 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.
(7) 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.
(8) Nothing in this section is intended to limit any rights or
remedies otherwise provided by law.
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
disability and the injured employee does not return to work for the
employer 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. The voucher shall not exceed a total amount of
ten thousand dollars ($10,000). 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 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 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.