Employers' Responsibilities

In almost every state, most employers are required to carry workers’ compensation insurance. This insurance program is to provide its employees with a variety of benefits:

• Medical care to cover employee injuries sustained at the workplace. This care covers hospital and other medical expenses to treat a work-related illness or injury. This coverage is for medications, doctor visits, surgeries, and in some cases travel expenses to and from treatments. In some cases, benefits will cover pain therapy, acupuncture, and counseling.
• Rehabilitation benefits are provided to cover therapeutic and medical care like those provided by a physical therapist.
• Disability benefits to compensate their employees’ part of their wages while they heal from injury or illness.
• Death benefits paid to the employee’s surviving family members should the injury result in the death of the employee.

There are a few states who allow certain agricultural or construction businesses and charities to be exempt from purchasing workers’ comp insurance.

Injuries and illness related to your work are the only ones your employer is responsible for under workers’ compensation laws. These injuries or a developing illness must be proven to be a result of performing your work duties at the workplace. In some cases where an employee is required to travel for business, run errands outside the workplace, or attend work-related functions off the property are still considered ‘work-related’ injuries and would fall under workers’ comp.

Along with accidents such as falling, getting burnt, or other job-related incidents, workers’ comp will also cover:

• Repetitive strain or stress injuries that are a result of performing the same job function repeatedly
• Diseases that are a result of conditions in your workplace such as exposure to toxic chemicals that may have caused cancer or heart conditions

Your employer is not responsible for injuries that were caused by an employee’s use of illegal drugs or being intoxicated. They are also free from responsibility if the injuries were self-inflicted or resulted from a fight started by the injured employee. Your employer may also not be responsible if you were violating company safety policies, or what is called ‘horseplay’ by acting foolishly on the business premises.

Being denied workers’ comp benefits due to your employer believing your acted without regard to safety or accuses you of fooling around on the job should be referred to a workers’ comp attorney. Facts may not support this denial and your attorney can help you investigate these charges and get you the benefits you’ll need to heal from your injuries.

It is an employer’s responsibility under California law to secure workers’ compensation benefits for their employees. To be defined as an employee, it requires you as an individual work for an organization or another individual who does not hold the title of an independent contractor. Whether an employer has one person working for them, or hundreds, they are responsible for providing workers’ comp benefits. It also does not make a difference if the employees are part or full time; they are still required to place them under the protection of workers’ compensation coverage.

The consequences under California law are serious for employers who do follow workers’ comp program requirements. One of the first steps a new employer should make when hiring employees is to purchase this coverage as there are large fines imposed by the state for those who do not. A business owner found guilty of not providing workers’ comp benefits to their employees faces fines up to $10,000 as it is considered a misdemeanor. This charge could also include possible jail time.

If you are working for an employer who has not purchased workers’ comp insurance, and you experience an accident while working that causes an injury requiring medical treatments,  you may be compensated through the Uninsured Employers Benefits Trust Fund. This fund is a state-administered fund designed to take care of employees injured on the job when their employers do not have insurance. The state would then have the right to seek reimbursement from your employer for any medical costs incurred.

Requirements for temporary workers fall under the responsibility of the agency they work under. Employment referral services, labor contractors, temporary employment agencies, or any other similar employment organization who hires temp workers are responsible for providing those they place in temporary positions with workers’ comp coverage.

To meet the requirements under California law, employers have two choices. They can apply with OSIP (Office of Self Insurance Plans) as an option to apply for the self-insurance program. The other option is to purchase a workers’ compensation insurance policy from a private agency that is licensed to work in California.

OSIP (Office of Self Insurance Plan)

As a self-insured employer, your employer will use their assets to cover obligations necessary to be met under workers’ compensation plan instead of purchasing an insurance policy through an insurance company. Authorization is required in order for an employer to be self-insured, and OSIP grants this authorization. The decision to accept the application for self-insurance depends on your employer’s financial strength, how they plan to deliver benefits, and their loss prevention plan. They will be required by OSIP to show:

• They’ve had net profits of more than $5,000 at least five years before applying for self-insurance
• They must show they have hired a third-party administrator and have an internal staff member who has become OSIP-certified and able to handle and process claims
• They must have $5 million or more in shareholder equity
• They will have to make a $220,000 deposit on their expected future liabilities
• They will also have to show they possess these documents:
  • An independently-audited financial statement which has been certified
  • A written proposal for an illness and injury prevention plan that will meet at least the minimum health regulations set forth by Cal/OSHA

OSIP and DWC will both conduct audits periodically to ensure self-insured employers are providing benefit payments correctly and on time. Some employers are not eligible to become self-insured. These employers include:

• Any employer who had previously been accepted to the program, but have left their coverage to lapse (these employers can ask for special provision through the DWC)
• Organizations who are identified as a professional employer
• Any employer who provides employees to others as their business
• Employers who provide temporary services to others
• Employers who are titled as leasing

If an employer wants to pursue the self-insured route to provide workers comp benefits, but are not able to meet the requirements on their own, they have the option to apply for a ‘group self-insurance’. By combining assets, multiple employers are able to create a self-insurance group. These employers must seek authorization through WCA and prove as a group; they have the financial stability it will take to meet all obligations. They must also show the following:

• That all businesses applying are in the same industry
• Together they must make a deposit of 135 percent of what they estimate will be their future liabilities
• Let each member of the group know if there is any chance of possible conflicts of interest between any of the members in the group
• Prove there are sufficient funds available to use in the event of any losses as well as enough funds to cover administrative costs for at least eight years
• Purchase an insurance plan to cover insurance claims that would run over $500,000

Any employer under the self-insured workers’ comp program will be required to provide annual reports that show their continued compliance with these eligibility requirements. The reports will be used to ensure each self-insurance deposit is adequate. If they should be required to deposit additional funds, they will have sixty days of filing the annual report to make their deposit.

If your employer is self-insured, they also have certain reporting obligations regarding the claims they’ve handled as injuries on the job. One of their commitments is to file an annual report as dictated by the DWC which must show:

• The amount of all the compensation claims they filed
• The total amount of benefits they paid in the year
• What their projected amount of future liability will be for the open claims under federal and state laws
• The average number of employees on their payroll and the total wages paid for each adjusting location
• A list of all their indemnity claims
• The amount they deposited for security

The WCA requires employers to display a notice in an accessible and noticeable location of your workplace. The notice is to advise you there is workers’ compensation coverage provided by them and that it complies with the rules and regulations laid down by WCA.

The notice must be posted in both Spanish and English and specifically list the information you need to know regarding what your rights and obligations are under WCA regulations. If your employer does not post this information in both languages and in an easy to see location, they could face misdemeanor charges. The absence of this notice could mean your employer does not have workers’ comp insurance coverage.

If your employer does not have a notice posted, they are responsible for allowing you to be treated by your choice of physician should you encounter any injury or illness related to the work you perform for them. This choice is yours to make for any injury or illness which occurs while the absence of notice continues at your workplace.

Your employer is also responsible for providing workers’ comp information to new employees when they are hired. They have until the end of the first pay period, at the latest, to provide this information. The information that must be given to new employees includes:

• How you are able to receive appropriate medical care when injured on the job
• What the function of the treating physician is and their role in treating injuries
• How you are to find and submit a form necessary to use when notifying your employer you wish to use your personal physician should you encounter an injury or develop an illness related to the work you perform while working
• If your employer does have workers’ comp insurance through an outside carrier, the insurance company must submit copies of a notice to the employer with all the necessary information regarding new employees

Employers are responsible for reporting injuries sustained by an employee under WCA regulations. This rule applies anytime a work-related incident injures an employee and requires:

• Loss of work time beyond what the employees work shift would have been at the time of the injury
• The employee needs more than first-aid treatment to tend to the injury or illness

‘First aid’ in this situation is described as a one-time treatment and the follow-up visit to a medical professional for observation of splinters, burns, minor scratches, or other minor injuries that will not require a trip to a medical facility for continued treatment. The tending of one of these minor injuries by a medical professional still qualifies these as ‘first-aid’ sustained injuries and are not covered by workers’ comp benefits.

As of January 2017, all work-related injuries, including those considered as ‘first-aid’ injuries, and even if it did not involve any lost work time, the insurance carrier of workers’ comp must report the injury to the WCIRB (California Workers’ Compensation Insurance Rating Bureau). The WCIRB will compile this information and use it to determine an employer’s premium rates, among other things, when determining workers’ compensation insurance coverage.

This information; however, can only be reported if the employer reports the incidents. Under WCA regulations, the employer is still not required to report injuries that do not result in lost work time or require medical treatments beyond what is described as ‘first-aid.’

If an employee seeks medical attention to treat a ‘first-aid’ injury and incurs medical expenses for this treatment, the medical provider must report the treatment to both the insurance carrier and DIR. This information is what triggers the insurance carrier’s obligation to report the incident to the WCA.

This system reduces employers who carry insurance the incentive to pay medical bills for first-aid treatments out of their company expense account, or out-of-pocket. Since these forms of claims can affect their insurance premiums, these less expensive claims will help to balance the more expensive ones.

After you notify your employer, or they receive knowledge of a work-related injury which involves time off from your regular work shift or treatment in medical facility beyond ‘first-aid’ treatment, they have one working day to:

• Give you the Form DWC 1; this is Workers’ Compensation Claim Form and the Notice of Potential Eligibility
• Inform you to complete your section of the Form DWC 1 and return it to them
• Your employer must then complete their section of the form
• Your employer will then have one working day after receiving the form back from you to submit it, completely filled out, to the insurance carrier or the DIR if self-insured. They must also give you a copy of the filled-out form

Besides the Form DWC 1, your employer must also fill out Form DLSR 5020, which is known as the Employer’s Report of Occupational Injury or Illness, and send this filled out form to their insurance carrier within five days after you’ve reported the injury, or they received knowledge of the injury.

Once the completed forms are submitted, the employer must authorize you up to $10,000 for medical treatments while the insurance carrier reviews the claim. Your employer should report this authorization to you within twenty-four hours of the injury, so you are able to seek medical treatments while the insurance carrier reviews your claim and decides whether or not benefits are due.

Should you be the victim of a crime at your workplace, your employer must provide written notice to you within one day of the crime to advise you of benefit eligibility for your physical or psychiatric injuries.

When your claim reaches the evaluating process as a workers’ compensation claim, your employer has a limited role. (Unless they are a self-insured employer) The insurance carrier for your employer will investigate the application and decide on whether or not to grant benefits. It is assumed that as the injured employee, you will cooperate with the insurance company.

The insurance provider will keep in touch with your employer and keep them apprised of the progress being made on the case.

Injured workers are not entitled to special treatment by their employer, but they cannot be singled out for poor treatment because they have filed a workers’ comp claim. The law protects employees from retaliation from their employers. Also, if the injury is classified as a disability, your employer may have to make special accommodations for your condition under state and federal guidelines. There are well-established rules prohibiting discrimination or retaliation in the workplace by an employer to an employee for filing a workers’ comp claim:

• The law prohibits your employer from taking negative action against you as an employee who has filed a workers’ compensation claim. If you become an at-will employee, your employer can still lay-off or fire you as long as it is not related to the claim. An employer who fires an employee with an open or recent workers’ comp claim is highly suspicious of doing so as retaliation. A retaliation charge, under California law, carries a large fine of more than $10,000. Employees fired under these conditions should seek legal counsel.
• Employees disabled due to an injury at work can expect their employer will make reasonable accommodations for them to continue working for them. The Americans with Disability Act (ADA) is a federal law that prohibits employers from discriminating against employees with disabilities. FEHA, California’s Fair Employment, and Housing Act add another layer of protection for employees and more responsibility for employers. If you've been injured on the job, and the injuries resulted in a permanent disability, you are guaranteed reasonable accommodations as part of your employer’s responsibility. This act means your employer is responsible for adjusting your working conditions to meet with your abilities with the disability.

If your employer is not carrying workers’ compensation insurance, you may be able to sue them in civil court if you sustain an injury at your workplace. Check with a workers’ compensation attorney if you find yourself in this situation.

Certain states have special funds to grant workers’ comp benefits to employees of illegally uninsured employers. The monies from these funds are used to pay medical costs to employees injured on the job but are not covered by workers’ compensation benefits. The state will seek reimbursement from your employer for the medical costs they have to cover for your treatments.

If you need the services of a workers’ compensation attorney in Los Angeles, call our Los Angeles Workers Compensation Attorney Law Firm at 310-956-4277. Our attorneys are ready to help you with your compensation claims to ensure you get the benefits this program promises to employees injured on the job. Workers’ compensation laws are complex and we are ready to get you through this process quickly and with less difficulty.