Working for Justice

Shrinking Workers’ Compensation Excludes Women

At Sanford Heisler Sharp we cover many of the hurdles that women face in the workplace. In addition to on-the-job issues, women can face discrimination in how they are treated following a workplace injury. According to recent news reports, Californian women who apply for workers’ compensation following an injury on the job receive lower compensation or can be excluded from the system altogether.

Workers’ compensation is a form of insurance for workers who are injured at the workplace. It ensures that workers who are injured receive compensation for lost wages and their medical treatment without requiring them to engage in legal battles with their employers. Many states mandate that employers pay into the insurance system so that employees are covered in case of injury.

California’s legislature is now considering a bill that would eliminate the disparity by removing conditions that predominantly affect women from consideration in determining whether there is a pre-existing condition to blame for the injuries, including pregnancy, menopause, breast cancer, and sexual harassment.  Assemblywoman Lorena Gonzalez who introduced the bill said she wanted to ensure that being a woman is not treated as a pre-existing condition.

Advocates noted how these preexisting conditions excluded women to disastrous and unfair effect:

The California Applicants’ Attorneys Association, a lawyers’ group that is sponsoring the legislation, said a police officer who undergoes a double mastectomy for breast cancer linked to hazardous materials she encounters on the job would be considered zero to 5 percent disabled depending on her age, while a male officer with prostate cancer linked to hazardous materials exposure would be considered 16 percent disabled and would be paid for the injury.

These exclusions can be seen as part of a larger trend to scale back workers’ compensation insurance. The Occupational Safety and Health Administration released a report yesterday that found that a decade-long trend of states scaling back their workers’ compensation programs has resulted in families and taxpayers bearing a larger burden of the costs following workplace injuries. An excellent NPR and ProPublica investigation details some of the tragic stories and sordid reforms that illustrate this shift.

According to OSHA’s report, the scaling back of workers’ compensation has helped fuel the larger trend of income inequality in the country as families are unable to recover from the economic effect of injury and fall into poverty. It further found that these issues are exacerbated by employers gaming the system and misclassifying employees as independent contractors who are not entitled to workers compensation. For example, a shocking 37.7 percent of all construction workers in Texas are misclassified as independent contractors.

As is the case in other areas of economic policy, women appear to bear a unique brunt in the failure of workers’ compensation. One can hope that Assemblywoman Gonzalez’s bill will become part of a larger trend to hold employers responsible for ensuring that their employees are not hung out to dry following a workplace injury.

Inayat Hemani

Inayat Hemani

Inayat Ali Hemani is a Senior Litigation Counsel in the NY office who works primarily on whistleblower/qui tam cases. Learn More

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