Home > 132a > On 132a and Fitness for Duty Exams

On 132a and Fitness for Duty Exams

This was a close call.  A community college police offer alleges an injury to his psyche and goes off work for several months before returning to full duty.  He is on the job, gun and all, for two years before his case resolves, settling by way of stipulation to 38% permanent disability.  When human resources gets wind of the settlement and the terms of the settlement, the director insist he undergo a “fitness for duty” evaluation, and is then found by the evaluator not to be fit for duty.

After some unsuccessful effort to find an alternative, non-gun-wielding job for applicant, he was let go.  Then came the 132a claim.  Labor Code section 132a prohibits discrimination based on workers’ compensation claims.  This means that an employer can not retaliate against an injured worker for filing a claim, or treat an industrially injured worker any worse than a non-industrially injured worker.  WCDefenseCA has had occasion to touch upon this hazardous area of the law before.

The issue came before a workers’ compensation Judge, who found that defendant had violated section 132a.  WCDefenseCA does not normally side with WCJs who side with applicants, but in all fairness to this WCJ in this case, this was a close call.

Applicant was told to undergo a fitness for duty exam and eventually dismissed after two years on the job without a problem, and the triggering mechanism for this was his award.  In other words, it does not look good.

On the other hand, you have a guy walking around with a loaded gun, confronting citizens after their real or imaginary violation of the law.  Public safety is an issue, and someone rendered 38% permanently disabled as a result of a psyche injury could well be perceived as not the best candidate for such a position of authority.

The Workers’ Compensation Appeals Board reversed, granting defendant’s petition for reconsideration, reasoning that applicant had failed to show it was the industrial nature of his injury which triggered the evaluation and termination of employment.

After all, if human resources discovered that applicant had sustained an injury to his psyche that caused 38% permanent disability while engaged in some non-industrial activity, defendant would have likely proceeded in much the same way.

Employers often have “fitness for duty” exams, but when the exams are conducted on a discretionary basis, 132a claims tend to arise.  It is important to tread carefully around this area, and pay particular attention to being even-handed with respect to the nature of injuries, industrial and non-industrial, when drafting policies.

Categories: 132a
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