You’ve been there: the injured employee has temporary work restrictions that the employer cannot accommodate. What are your options?
One great choice is to assign the employee to a temporary job with a third party, such as a charity. This can cut off the temporary gravy train and keep the employee from sitting around the house with nothing better to do than to become deconditioned. Lounging at home is a terrible form of rehabilitation. Temporary work with a charity can help the employee feel good about themselves and doesn’t hurt the employer’s reputation in the community!
Some charity organizations have religious underpinnings. The Salvation Army is an excellent example. Indeed, the Army’s mission statement describes itself as “an evangelical part of the Universal Christian Church.” Can a charity’s religious connections be used by an employee as an excuse to not accept the proposed modified work?
These issues were addressed in Bounthon v. Safe Streets USA, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 127, in which the WCJ explored whether defendant’s offer of modified work at the Salvation Army violated the employee’s rights and freedoms under the U.S. Constitution, specifically the doctrines of freedom of association, and freedom of religion. The court also addressed was whether the modified work assignment qualified as slavery and involuntary servitude in violation of the 13th Amendment.
The employee’s arguments in Bounthon were not well received, as may well have been expected. First, the WCAB has no jurisdiction over constitutional issues. That fact notwithstanding, the Board noted that the employee failed to offer evidence at trial about his religious beliefs or how they were violated. It also rejected his argument that the work was a form of modern-day slavery.
The WCAB relied on Labor Code 4657 which states that “due regard shall be given to the ability of the injured employee to compete in the open labor market” and that “weekly loss in earnings may be computed from the proportional loss of physical ability or earning power caused by the injury.” (Emphasis added.)
The board concluded that, per LC 4657, an employee is expected to earn the wages that his injury will allow, regardless of where they are earned, and that if there is another reason for his inability to work, only the portion of disability benefits chargeable to the industrial injury would be allowed as compensation. The employee’s constitutional claims did not qualify as “another reason” that the applicant was unable to work.
The WCAB revisited similar religious-based arguments against temporary modified work assignments this year in Douglass v. Hertz Corp., 2020 Cal. Wrk. Comp. P.D. LEXIS 139. The employer argued, and the WCAB agreed, that the employee was not entitled to TD when he refused to accept an offer modified work at a nonprofit organization, Helping Hand Thrift Shop, even though he claimed he turned down the assignment because it was a religious organization.
The WCAB explained that an injured worker who refuses modified work without giving a good reason may be estopped from claiming temporary total disability. It found that the applicant failed to communicate his concerns during the period at issue and deprived the defendant of the opportunity to potentially resolve them.
The commissioners added that even if the applicant had communicated his concerns, they would not constitute good cause for his refusal to accept the modified duties. Agreeing with the employee that Helping Hand sold some religious items, the WCAB concluded that this fact did not establish it was a religious organization. In short, the employee was not entitled to temporary disability indemnity because he refused a bona fide offer of modified work.
Can an applicant successfully argue that the California and/or U.S. Constitution prohibit an employer from withholding TD from a temporarily disabled employee when the only proposed modified work violates the employee’s rights to freedom of religion or other constitutional right? Perhaps.
But first, applicant must timely communicate his objection(s) to the employer. Then the employee and his attorney had better get ready for a litigation nightmare. Neither the WCJ nor the WCAB can rule on constitutional arguments. Thus, the matter must go to a U.S District Court of Appeal, California Supreme Court and, potentially, the U.S. Supreme Court. The odds of this happening are better than the proverbial snowball…but not by much.
Upshot? Employers who don’t have available modified work to assign to temporarily disabled employees should feel comfortable referring these employees to alternative worksites, including businesses that are related to a religious organization.
Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these and many other topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a question? Interested in having a webinar or training at your offices? Feel free to contact Don at (916) 996-1263 or email him at firstname.lastname@example.org.
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