Workers' Compensation: Employer's Responsibilities

Workers' compensation is a type of insurance meant to protect employees from financial strain due to medical costs and lost wages arising from work-related injuries. When your employer has workers' compensation insurance coverage, you cannot sue the employer for negligence in case an accident occurs (that is if you choose to seek compensation under the workers’ comp law). In exchange, the employer will pay the medical expenses and lost wages, among other benefits resulting from a work-related injury. Workers' compensation allows injured workers to receive temporary disability benefits, permanent disability benefits, supplemental job displacement benefits, medical benefits, and death benefits.

All employers in Orange County are required to have workers’ compensation insurance. WC laws also require employers to provide a safe working environment and notify employees of the insurance coverage.

Apart from hiring and firing employees, employers have a general duty of care to ensure that they protect the health and safety of their employees. A good employer should ensure that the employees are protected, their rights upheld and that they benefit from being members of the organization. This includes being responsible for their welfare in case they are injured or become ill while conducting work-related tasks. Workers’ compensation requires all employers to meet their duties and responsibilities as follows.

1. Providing A Safe Working Environment

The Occupational Safety and Health Administration of the US Department of Labor requires all employers to create and maintain a safe workplace for their employees. OSHA is responsible for ensuring that employees work in conditions that do not pose a risk to their health and well being. The organization has established standards that employers have to meet for the workplace to be considered safe.

Employers should maintain a safe environment as far as is reasonably possible by removing known hazards. Other ways in which they can ensure the workplace is safe:

• Providing and maintaining safe equipment and machinery
• Providing and maintaining safe systems of work such as controlled entry into high-risk areas
• Ensuring the safe use and storage of equipment and chemicals
• Removing elements that could threaten the health of the employees such as maintaining hygiene and keeping fire exits accessible by removing blockages
• Providing training and instruction to employees on safety practices
• Ensuring that the conduct of their business does not pose risks to the health and safety of employees
• Regularly monitoring and supervising the workplace to ensure that all risks and hazards are removed and that employees know of the potential risks
• Instituting safety policies for their business to encourage employees to engage in safety practices such as wearing protective gear when handling chemicals
• Giving warnings to employees who violate the safety code of the organization

The employer is responsible for purchasing any safety equipment and tools that the employees require for their activities and conducting regular maintenance of vehicles to prevent the risk of injury.

Employers can also ask the employees about the potential risks and hazards they notice at the workplace. Employers are expected to act on the information provided by finding ways to remove the hazards or improve risk awareness and training to employees.

However, telling employees verbally that an area is dangerous or risky is not enough, employers should provide notices and protective measures, for instance, indicate that access to an area is restricted, put up a perimeter around it to prevent unauthorized access.

In case your employer fails to remove hazards from the workplace, you can report to the OSHA, who will then contact the organization and conduct an inspection. Some of the safety standards that a workplace should meet include:

• Fall protection
• Availability of trenching cave-ins
• Prevention measures to prevent exposure to harmful chemicals and infectious diseases
• Safety measures for employees who access confined spaces
• Put guards on dangerous machines
• Provide training for dangerous jobs in a language and vocabulary that the employees can understand

When the employer fails in his or her duty to provide a safe working condition, employees have the right to refuse to work until the condition is corrected. Since your refusal to work will be done in good faith, the employer cannot punish you or initiate any disciplinary action.

2. Duty To Obtain Workers’ Compensation Insurance

The law mandates all California employers to purchase workers’ compensation insurance. The requirement applies to any person, business, partnership or other entity, which has one or more employees. Workers’ compensation is a form of liability insurance and one of the costs of running the business. Therefore, employees cannot contribute to the payment of premiums. Employers usually obtain workers’ comp by:

• Purchasing from a licensed insurance company
• Purchasing from the State Compensation Insurance Fund - this is a diverse and fairly priced workers’, comp insurance. It is one of the best WC coverage especially for small businesses and upcoming ventures.
• Self-insurance – employers who have the financial resources can opt for self-insurance where they take responsibility for paying benefits in case employees are injured or become ill on-the-job. The state approves employers before they are allowed to self-insure. Some of the requirements include having an annual net annual income of $500,000 and a net worth of at least $5 million.

Employers who do not meet the eligibility requirements for self-insurance usually work with other employers in similar industries. They usually administer the claims themselves or hire third-party administrators to handle claims.

In addition to obtaining the WC coverage, employers need to pay for premiums regularly.

3. Duty To Notify Employees About The Workers’ Compensation Policy

Employers must inform all employees (new and existing) of the existence of the workers' comp through a notice, which should be posted in a conspicuous place that is accessible to all employees. As a new employee, make sure you are given a pamphlet with details of what to do in case of a work-related injury.

The notice covers in detail, the important details of the coverage. Some of the information you can find in the notice includes:

• The existence and reason for the existence of the workers' compensation policy
• Details on how workers’ compensation protects employees
• The injuries covered
• The types of benefits workers can get from workers’ comp
• The steps to follow in case an accident occurs or you become ill on the job
• The need for prompt medical care and the facilities from which you can get medical treatment
• The need for prompt reporting of work-related injuries and illnesses
• Warnings against fraud
• Your employer’s commitment to your safety and well-being

4. Duty To Provide Employees With Claim Forms

As soon as you notify your employer or supervisor of a work-related injury or illness, he or she is required to provide you with a claim form within one working day. Providing the form allows employees to exercise their right to workers' compensation, whether they choose to make a claim or not.

You can either collect the form from their office or have it mailed to you.

When an employer issues you with a claim form, they are not admitting fault for your accident, neither are they accepting that the claim is valid. You claim still has to pass through the claims administrator for investigation. The administrator can accept or deny your claim depending on the results of the investigations.

It is, therefore, advisable to keep a record of what happened during the accident, any witness statements, and their contact details. Keep all your medical records for any treatment you receive for the injury.

Not all injuries require a claim form, as they do not result in medical costs or lost wages. Your employer should provide the form in the following circumstances:

• The injury requires medical treatment other than first aid
• The injury results in lost time and wages
• You inform the employer of having suffered a work-related injury or illness (with or without witnesses)
• You present a doctors' note indicating that have suffered a work-related injury or illness
• You are a state employee who had an accident on state property
• You are a state employee, and the accident occurred while on state business, either on or off state property

After filling in the form, you return it to your employer who is required to forward it to the claims administrator in one working day.

5. Duty To Provide Medical Treatment

Where you submit the claim or informs your employer of the work-related injury, your employer must authorize an amount not exceeding $10,000 for medical treatment. The funds cater to medical expenses while the administrator is processing the claim. Employers should also provide medical tests such as hearing exams if they work in industries that present risk for injury or illness through accumulated trauma.

6. Responsibility To Report Workplace Injuries

OSHA requires all employers to submit reports of deaths and injuries that occur on the job or are work-related. The requirement indicates that you must report, on the phone or in person:

• Work-related deaths within 8 hours of learning about them
• Work-related hospitalizations, amputation, and loss of an eye within 24 hours
• Death in construction work zones (both employees and pedestrians)
• Fatal heart attacks that happen at work

In addition, employers are required to record serious work-related injuries if they have more than 10 employees and are in the partially exempt industries such as

• Low hazard retail
• Finance
• Insurance
• Service
• Real estate

The requirement enables OSHA to perform inspection targeting, resource allocation, development of standards and measurement of performance

Employers should post a summary of all the work-related injuries in the previous year and maintain these records for at least five years.

Apart from adhering to OSHA recordkeeping requirement, they should submit a report of the injury to their insurance company and the workers' compensation board office. They should also make written reports of the accidents that lead to loss of time beyond the regular shift and require more than two treatments by a doctor or medical treatment beyond first aid.

7. Employer’s Duty To Facilitate The Return Of Injured Workers To Work

After the injury, employers have the legal responsibility to support their injured employees to return to work as soon as possible. Supporting employees’ return to work means that the injured employees have sufficient recovery time and are given work that does not put them at risk. They should not be pressured into returning to work if they are not ready.

After treatment for the injury, your employer may request reports from the doctor to determine whether you have any work restrictions. This report allows your employer to come up with alternate, modified or regular work that you are capable of handling.

After receiving the doctors’ report, your employer can offer you:

• Regular work - which is the same job that you had before the injury, lasts for at least 12 months at the same pre-injury wages and benefits. The job should be within a reasonable commuting distance.
• Modified work - is your old job with some adjustments to accommodate the injury. Modified work should last at least 12 months at at-least 85% of the pre-injury wages and benefits and be within a reasonable commuting distance.
• Alternative work - offered to employees who cannot return to their old job due to temporary or permanent disability. It must be within reasonable commuting distance, last at least 12 months, and pay at least 85% of the pre-injury wages or benefits.

Other duties related to the employer’s responsibility to support an injured worker to return to work include:

• The requirement to hold the position of the injured employee open for 12 months
• Help workers who are capable of returning to work to do so within 12 months after the injury
• Help a worker return to his job or modified work
• Make modifications at the workplace to aid the employees to return to work
• Nominate a coordinator to help the employee in preparing to return to work

However, an employer can refuse to employ an injured worker or allow them to return to work if doing so would endanger the health and safety of the worker or other persons.

However, if you request your employer to return to work and they turn down your offer, you can sue them for retaliation.

Employers should present an offer of work to the injured employee after learning that they have recovered enough to return to work for modified, alternative, or regular work. If the employee declines the offer or fails to respond to the offer within thirty days, then the employer can withdraw the offer.

8. Employer’s Duty To Co-Operate With Authorities And Employees

When an injury occurs at the workplace, an employer is required to help the injured employees, ensure that those who are not injured are safe. They should also gather and record evidence related to the accident.

As soon as an employee reports an injury or illness related to work, they should help them in getting a claim form and communicate the injury to the relevant bodies. The employer should also cooperate with the authorities to facilitate a quick claims administration process. Some of the ways an employer shows cooperation include:

• Ensuring all fields of the claim form are filled and any additional information attached
• Reporting the claims promptly
• Informing the adjustor of any lost time (and wages) in a claim
• Providing any additional information requested by the claims administrator. This means they have to keep communication lines open and respond to any calls for additional information to facilitate a faster investigation. They should also submit unrequested information that they feel is of help to the case such as any bills brought in from the doctor treating an employee.
• Gather facts, evidence, and witnesses related to the injury so that they can answer the adjuster’s question knowledgeably.

Before the injury, they are supposed to cooperate with OSHA and other regulatory bodies in providing information about the safety standards at the workplace and the measures taken to remove workplace hazards.

9. Employer’s Duty Not To Retaliate

California labor laws prohibit employers from taking adverse action against employees who file for workers' compensation benefits. Employers can retaliate by firing, demoting, blacklisting, disciplining, refusal to hire/rehire, denying benefits, threats, and intimidation, denying promotions and reducing pay or cutting back on hours.

You can sue your employer if you feel that he or she has acted in a discriminatory manner against you, and you believe the action is tied to you being injured or filing for workers’ compensation.

You should look for a workers’ compensation attorney to help you with filing a lawsuit against your employer for retaliation.

Your employer can also retaliate against you for reporting to the safety authorities about the presence of safety hazards in the workplace. Such retaliation is prohibited.

File a complaint if you think your employer is retaliating against you by contacting the local OSHA office. Alternatively, you can file the claim online or through mail/fax.

OSHA will then investigate to gather relevant evidence. If there was discrimination involved, your employer will be required to restore your job, earnings as well as benefits.

10. Duty To Report Fraud

Some unscrupulous employees, doctors, adjusters, employers, and claim adjusters may use workers' comp to take advantage, for their financial gain. Employers are required to report to the relevant authority. Instances of workers’ compensation fraud an employer can report include:

• If they believe the employees' claim is not valid. In such a case, the employer is to provide the facts they are aware of and witness statements. The employer should also create a written report for the same.
• If they receive a claim from someone who is not their employer or beneficiary of the employee (if the work-related injury results in death)
• If they receive billing for more treatment than was given or for treatment that was not necessary for the condition.
• Deception by employees about their ability to work by exaggerating injuries so that they keep receiving benefits
• When the employee presents a false claim through classifying an injury as work-related or faking the injury
• When the doctors or claim adjusters solicit for referrals
• When an employee makes multiple claims for the same injury

If your employer accuses you of fraud so that they skip paying your workers' comp benefits, you should sue them. You need an attorney to investigate the claim and reports by the employer to determine whether your employer acted fraudulently.

11. Employer Responsibility If They Are Illegally Uninsured

If you are injured at work and your employer is illegally uninsured, they have the responsibility of paying for your medical costs and lost wages.

You can also claim the benefits from the Uninsured Employers Benefits Trust Fund who might pay for your medical bills and lost wages.

When you file a workers’ compensation claim, the Uninsured Employers Benefits Trust Fund will contact your employer seeking reimbursement on behalf of the employee. They can recover the expenses even through filing for liens against your employer’s property.

Your employer can evade their responsibilities in workers' compensation and try to defraud you or prevent you from getting your benefits after a work-related injury. You need to hire an attorney who is experienced in dealing with workers' comp to ascertain that your employer has fulfilled his or her responsibilities before and after the injury. The Workers Compensation Attorney Group in Orange County boasts many years of experience in handling workers' compensation cases. Contact our workers compensation lawyer today at 562-485-9694 to schedule a free-non-obligatory consultation.