Today’s Topic: The Incarcerated Worker
Isn’t it ridiculous when an injured worker receives temporary disability compensation benefits while in jail? It drives employers absolutely crazy. Paying someone disability while incarcerated at a federal prison, state penitentiary, county jail, local or city jail, or a juvenile correctional facility is just plain wrong. However, under California law an injured worker on TD is allowed to continue receiving disability benefits while in jail, except benefits may be held in trust for those incarcerated in a state penitentiary.
In an attempt to terminate TD, some employers consider sending a doctor to prison to examine an injured worker. Such plans are usually an administrative nightmare with no guarantee of success. Also, finding a physician willing to travel to prison can be more difficult than imagined. In addition, most employers have no idea how to navigate the process of obtaining permission from a correctional facility to allow a doctor’s visit. Lastly, let’s not forget the cost associated with such a plan, which is often prohibitive.
Allow us to offer a much easier and more economical alternative for consideration. All that is needed is for the employer to issue a good faith offer of modified duty. As long as the offer is made in good faith, with a light duty job actually being available, the employer has nothing to fear. Send the offer to both the employee’s home address and to the prison. If the injured worker does not show up for work that’s not the employer’s problem. TD benefits can legally be terminated at that time for failure to report for modified duty.
When first learning of this idea some people initially react in utter shock and disbelief, especially applicant attorneys. They get very upset and loudly proclaim, “You can’t do that!” But that’s not what the law says. California law requires employers to treat employees the same, especially following an industrial injury. An employer cannot discriminate against an injured worker. Everyone must be treated equally, including those in jail. Keep in mind an incarcerated employee is not entitled to greater rights than others. By offering light duty to all injured workers, regardless of their incarceration status, an employer ends up treating all employees equally. Again, there is nothing to fear when everyone is treated the same.