Getting Under the Hood for Careful Comp Evaluation

Diagnosing the sensitive nature of California’s workers’ compensation crossover claims

May 26, 2022 Photo

Imagine for a moment that you dropped your car off for a routine oil change, only to be contacted by the mechanic and advised of a litany of issues which could make your car implode at any moment. Most of us can relate to that awful feeling of having to deal with something expensive and untimely, especially if it could have been prevented in the first place.

California is a litigious legal environment—some say the most difficult for employers. Workers’ compensation laws, in particular, are liberally construed in favor of applicants, often leaving employers fearful of potential claims and how best to handle them when they arise. Often, the immediate urge is to aggressively push towards settlement without consideration for other potential rights the employee may have. However, just like a car requires preventative maintenance to avoid substantial (sometimes terminal) mechanical issues, a claim for workers’ compensation benefits requires careful evaluation to avoid triggering potential violations of other applicable laws which could lead to significant exposure in civil courts.

Because workers’ compensation claims arise from an alleged injury, they often trigger rights under the Equal Employment Opportunity Commission (EEOC), Fair Employment and Housing Act (FEHA), Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), as well as (in California) the California Family Rights Act (CFRA) and/or Labor Code section 132(a). For example, when an employee needs time off because of a medical or disability-related issue, they may have rights not only through workers’ compensation, but also under any or all of these laws at the same time. Thus, without proper legal guidance throughout the claims process, a relatively straightforward injury can snowball into multiple derivative employment claims.

In certain situations, provisions of the ADA, the FMLA, and workers' compensation laws intersect, making it difficult for employers to understand their responsibilities. For example, a workers' compensation injury that requires hospitalization or continuing treatment by a health care provider generally qualifies as a serious health condition under the FMLA. Moreover, if that injury causes a permanent mental or physical impairment that substantially limits a major life activity, that same employee could be entitled to additional leave under the ADA.

As a result, it is imperative to proactively identify any potential crossover claims that can arise from a work injury and impact the employer directly. One such example involves offering modified duties to an injured worker in an effort to cut off entitlement to temporary disability benefits without properly engaging in the interactive process described within the FEHA.


Many employers have compartmentalized departments that handle issues related to human resources and workers’ compensation matters. When a workers’ compensation claim is filed, brokers, insurance carriers, third party administrators (TPAs), and workers’ compensation defense attorneys enter the picture to administer the claim. When all of these individuals do not communicate effectively, they create a potential risk for significant civil exposure—especially when workers’ compensation claims are rushed to closure without taking preventative measures to ensure compliance with applicable employment laws.


Picture a scenario where an employee presents documentation from a doctor (or calls from a doctor’s office) indicating that he needs time off due to a medical condition. However, the employee does not formally complete paperwork to request medical leave. Even without documentation, the employer may be considered on notice of a medical condition or disability. The employer might subsequently terminate the employee for job abandonment, and he may in turn file a claim for workers’ compensation benefits. Although the focus turns to the injury claim, even if it resolves quickly, it does not absolve the employer from potential liability for failure to provide reasonable accommodations or paid leave (regardless of the cause of injury), and/or a claim of disability discrimination or wrongful termination.


The best way to avoid triggering a potential crossover action is for employers to quickly identify requests for medical and disability-related leave, and then work together to determine their responsibilities in relation thereto. Open communication between supervisors, human resources personnel, risk managers, workers’ compensation administrators, and attorneys is key to ensuring all departments are on the same page.

The following is a step-by-step breakdown to help diagnose what laws are applicable to certain common situations to help employers determine their responsibilities regarding medical and disability-related leave:

 Determine which laws apply to the employer. 

  • The ADA applies to employers with 15 or more employees.
  • The FMLA applies to private employers with 50+ employees.

 Determine which laws apply to the employee. 

  • Has the employee worked for at least 12 months? (CFRA)
  • Is the injury work-related? (Workers' Compensation)
  • Does the employee have a serious health condition? (FMLA)
    • Does the condition require overnight hospitalization?
    • Does the condition require continuing treatment by a health care provider?
    • Determine if a medical certification or consultation is necessary to ensure that a requested accommodation is necessary and reasonable.
  • Is the health condition not short-term or temporary? (ADA) When more than one law applies, employers must provide leave under whichever law provides the greater rights and benefits to the employee.

Determine whether an employee’s return to work poses a direct threat to the health or safety of the employee or others in the workplace.

Determine whether there is an obligation to provide accommodations, a modified work schedule, and/or a light duty assignment. In some situations, FMLA/CFRA and workers' compensation benefits run concurrently. This can mean that the employer is required to keep the employee’s job open upon his or her return, and, importantly, that the employee cannot be forced to return to light duty. Moreover, the employer is required to continue an employee’s health care coverage during this period.

Like California, several states have enacted their own family and medical leave laws, some of which provide longer amounts of leave and greater benefits than those provided by the FMLA, and/or to employees who are not eligible for FMLA. When employees are covered by both federal and state family/medical leave laws, they are entitled to the greater benefit or combination of benefits provided under each law.

Most importantly, employers should remember that any adverse employment actions following any notice of potential injury or disability, particularly terminations and/or suspensions, should be reviewed with an experienced employment attorney. Ideally, the employer, broker, third-party administrator, and insurance carrier should consider consolidating representation with the same attorney and/or firm in order to ensure the best and strongest unified defenses against all claims under one roof.

About The Authors
Multiple Contributors
Leonard V. Retter

Leonard V. Retter is partner at Goldberg Segalla.

Thomas P. Mastro

Thomas P. Mastro is partner at Goldberg Segalla.

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