BILL ANALYSIS
SB 942
Page 1
SENATE THIRD READING
SB 942 (Migden)
As Amended July 5, 2007
Majority vote
SENATE VOTE :23-15
INSURANCE 7-3
-----------------------------------------------------------------
|Ayes:|Coto, Berg, Charles | | |
| |Calderon, Carter, De | | |
| |Leon, Lieber, Parra | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Benoit, Duvall, Garrick | | |
| | | | |
-----------------------------------------------------------------
SUMMARY : Provides a financial incentive for injured employees
to obtain education and career retraining, and requires
employers to return employees to work within five days of
receiving notice that the employee is able to return to work.
Specifically, this bill :
1)Entitles employees injured after January 1, 2008, to
supplemental job displacement benefits in the form of a
voucher for education-related retraining and/or skill
enhancement at state accredited schools if the employee
experiences permanent partial disability and the injured
employee does not return to work within 60 days after the
disability becomes permanent and stationary, with specified
exceptions. The exceptions are that the employer would not be
liable for these supplemental job displacement benefits if the
employer offers the injured employee regular work, modified
work, or alternative work in the manner prescribed by the
Administrative Director of the Division of Workers'
Compensation, and the work lasts for a period of at least 12
months.
2)Sets $10,000 as the maximum amount for this education and
skill-related voucher, and further specifies that the maximum
amount of the voucher for tuition, fees, books, and other
expenses for a school shall not exceed $5,000 per year.
SB 942
Page 2
3)Requires an employer to reinstate an employee to his/her
pre-injury 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. This would be 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. This type of medical release is referred to
as a "full release without restrictions."
4)Requires the employer to reimburse the employee (see #1)
above) for lost wages and work benefits if the employer
refuses to reinstate the employee to his/her pre-injury job.
5)Prohibits an employer from requiring 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 disabilities
or the additional duties are presently required of employees
in the same class or job assignment as the employee held at
the time of injury.
6)Requires the employer to reimburse the employee (see #3)
above) 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.
7)Requires any employer that refuses to reinstate an employee to
his/her pre-injury job to pay a civil penalty of $100 per day,
and the employee shall be entitled to reimbursement for lost
wages and work benefits.
8)Provides that this bill shall not preclude an employer from
objecting to the opinion of the treating physician or from
obtaining an opinion from an agreed medical evaluator or
qualified medical evaluator. 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 another opinion.
SB 942
Page 3
9)Specifies that the report of the agreed medical evaluator or
qualified medical evaluator shall be based on an in-person
physical examination of the employee.
10)Specifies that if the report of the agreed medical evaluator
or the qualified medical evaluator states that the employee is
unable to perform the essential functions of the employee's
regular position, or is unable to perform the 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 for any period after the date of service of
the report, the employer shall not be liable for lost wages
and work benefits, and the employer shall not be liable for
the $100 per day civil penalty (see #5) above).
11)Makes it a misdemeanor for an insurer to advise or threaten
an insured employer to cancel or raise a premium or otherwise
discriminate against an employee because the employer
testified in another employee's case before the Workers'
Compensation Appeal Board.
12)Creates a presumption that an employer has unlawfully
discriminated against an employee if the employer denies an
employee the right to predesignate a treating physician prior
to injury or illness or denies an employee the right to see
his/her properly predesignated physician or a medical provider
to whom the predesignated physician has referred the employee
after the injury or illness.
13) Provides that nothing stated above is intended to limit any
rights or remedies otherwise provided by law.
EXISTING LAW :
1)Makes an injured worker eligible for a supplemental job
displacement benefit in the form of a voucher for
education-related retraining and/or skill enhancement at
state-approved or accredited schools if the worker has
experienced a permanent partial disability and the injured
employee does not return to work for the employer within 60
days of the termination of temporary disability, with
specified exceptions .
SB 942
Page 4
2)Specifies the following exceptions in which an employer is not
liable for the supplemental job displacement benefit:
a) If the employer, within 30 days of the termination
of temporary disability benefits, offers and the employee
rejects or fails to accept modified work accommodating
the employee's work restrictions, and lasting at least 12
months; or,
b) If the employer, within 30 days of the termination
of temporary disability benefits, offers and the employee
rejects or fails to accept alternative work in which the
employee has the ability to perform the essential
functions, the job is in a regular position lasting at
least 12 months, the job pays wages and compensation
within 15% of those paid to the employee at the time of
injury, and the job is located within commuting distance
of the employee's residence at the time of the injury.
3)Declares that it is the policy of this state that there should
not be discrimination against workers who are injured in the
course and scope of their employment.
4)Makes it unlawful for an employer to discharge or threaten to
discharge, or in any other manner discriminates against, any
employee who files a workers' compensation claim. Violation
of this law is a misdemeanor and the employee's compensation
must be increased by one-half, but not to exceed $10,000,
together with costs and expenses not to exceed $250.
5)Specifies that the employee is entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the
acts of the employer.
FISCAL EFFECT : The bill is keyed non-fiscal by Legislative
Counsel.
COMMENTS :
1)Purpose of this bill: According to the author, the purpose of
this bill is help formerly injured workers return to work, and
gain better compliance with workers' compensation laws from
employers.
SB 942
Page 5
2)Need for this bill: The author states the following:
The best outcome of a workers' compensation case is that an
injured worker receives medical treatment, fully recovers, and
returns to his/her work. This bill promotes that outcome by
penalizing employers for refusing to reinstate injured workers
even after they are released to return to work by their
doctor. It allows employers to seek an alternative medical
opinion and, if it contradicts the worker's doctor, the
employer is released from liability.
Under current law, employers are not obligated to bring workers
back after a workers' compensation injury. In fact, employers
are using the workers' compensation system to get rid of
older, more senior employees. Current statutory incentives to
put injured workers back to work are not working. While
employers who don't take back injured workers pay a 15% higher
permanent disability (PD) benefit, the recent cuts to the PD
schedule, averaging 50%, have slashed benefits so dramatically
that these incentives are now insufficient.
3)Arguments in support: According to the sponsors, the
California Federation of Labor and the Teamsters, California's
workers' compensation system has undergone dramatic changes
over the past five years. Employers have enjoyed considerable
savings and insurance companies are reaping historic profits,
with injured workers paying the price. Not only are workers
receiving greatly reduced benefits, but many are also facing
significant obstacles when they try to return to work. Also,
benefits have become so low that some employers find it
cheaper to keep a worker on PD and pay out a lower benefit
than put the worker back to work. Others have used the system
to get rid of older employees. Workers who have been on the
job longer tend to have accrued higher wages, more vacation
days, and better benefits. It can be cheaper for the employer
to replace these older workers with younger, healthier, and
lower-paid workers.
In addition, some injured workers are prevented from returning
to work because the employer adds new tasks to the job to make
it impossible for that worker to accomplish the work. Instead
of reducing litigation, a stated objective of SB 899
(Poochigian), Chapter 34, Statutes of 2004, the refusal to
SB 942
Page 6
return injured workers to their jobs has forced many workers
to find employment lawyers to file anti-discrimination
lawsuits. Union members are forced to grieve and arbitrate
decisions that keep them off the job. SB 942 would reduce
conflict between employers and employees by providing the
following clear rules for the return to work process: 1)
respect the recommendation of the treating physician; 2)
penalize employers who discriminate against injured workers by
refusing to return them to work; 3) prohibit employers from
changing job requirements to prevent injured workers from
returning; and, 4) prohibit discrimination against an employee
for exercising the right to pre-designate a doctor.
4)Arguments in opposition: Opponents argue this bill creates
unreasonable requirements for employers when bringing injured
employees back to work. This bill does not take into account
typical situations that may justify a delay in return to work.
These include questions over the medical release, and
instances when an employer closes down a facility and does not
have a job for an injured worker, and, yet, they would be
required to pay full salary and benefits. Also, there is no
exception for an employee who is terminated for cause during
the return period. This bill's requirement to return to work
a previously injured employee within five days or face new
monetary costs, places the employer on the defensive, and
opens the door to more claims.
Analysis Prepared by : Manny Hernandez / INS. / (916) 319-2086
FN: 0001799