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The Honorable Carole Migden California State Senate State Capitol, Room 5114 Sacramento, CA 95814 FAX: 916-445-4722 SUBJECT: SB 942 (MIGDEN): WORKERS’ COMPENSATIONSCHEDULED FOR HEARING – OPPOSE Dear Senator Migden: I OPPOSE your SB 942, which would increase workers’ compensation costs by creating new requirements for employers when bringing injured employees back to work. SB 942 expands labor code section 132(a), which protects employees from discrimination based on their workers’ compensation claims. Specifically, the bill creates a presumption that an employer has discriminated against their employees if they do not return the employee to work with full pay and benefits within one day of the employee being released to full duty. Labor code section 132(a), while intended to protect employees, has historically placed the burden of proof on employees to prove that their employers have discriminated against them due to their claim. This bill would change that burden by requiring employers to prove that they did not discriminate against their employee as described above. SB 942 also creates a separate and a more austere punitive penalty structure for this specific violation. The expansion of labor code section 132(a) is unnecessary. Labor code section 132(a) has traditionally been a general discrimination statute that is meant to generally prohibit employers from discriminating against employees who file or intend to file workers’ compensation claims. The expansion is not in keeping with the traditional purpose of labor code section 132(a) and is duplicative in many ways with existing employee protections under California’s Fair Employment and Housing Act (FEHA) and the federal American’s with Disabilities Act (ADA). SB 942 also changes the way supplemental job displacement vouchers (SJDV) are awarded to employees. Current law indicates that an employee is not eligible for the SJDV if their employer offers, within 30 days of the date the employee is determined to be permanent and stationary, modified work lasting at least 12 months that accommodates the employee’s working restrictions. SB 942 would change that timeframe for action by the employer to 10 days. This change is problematic because the employer is most likely not going to have information regarding an employee’s permanent restrictions within 10 days of the employee becoming permanent and stationary. In many cases it will be impossible for an employer to successfully comply with the provisions of this bill. Reducing the timeframe for an employer to offer permanent or modified work is counter to current protections under FEHA and ADA. These protective statutes require employers to undergo an interactive process with employees, which is also a very comprehensive process. Failure to engage in this process accurately exposes employers to significant risk of liability. Creating a situation where employers are in a rush to get an employee back to work will cause the interactive process to be rushed as well, undermining the objectives set forth by these statutes. This will expose employees to the risk of an incomplete process, and employers to increased liability under FEHA and ADA.

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