City Discriminated By Requiring Employee To Use Vacation Time Rather Than Sick Leave To Obtain Medical Care

In Andersen v. Workers Compensation Appeals Board, (— Cal.Rptr.3d —, 2007 WL 1153010, Cal.App. 2 Dist., Apr. 19, 2007), a California Court of Appeal considered whether a city violated Labor Code Section 132a, which bans discrimination against workers who are injured on the job, when it required the employee to use vacation time rather than sick leave to seek medical care for his injuries.

The court ruled that because the city allows workers injured away from the job to use sick leave to seek medical care, it illegally discriminated by forcing a worker injured on the job to use vacation time for that purpose.


John Andersen (“Andersen”) was injured while working for the City of Santa Barbara (“City”) and was required to use vacation time to obtain medical care for his injuries. He filed a workers’ compensation claim contending that the City illegally discriminated against him by doing so. The Workers’ Compensation Appeals Board (“Board”) ruled against Andersen. A Court of Appeal denied his petition but the California Supreme Court ordered the Court of Appeal to hear Andersen’s case to consider only whether the City violated Labor Code Section 132a.


The court reviewed the language of Section 132a, which bars employers from discriminating against workers because they have filed a claim against the employer. It also reviewed the City’s policy of allowing workers injured away from the job to use sick leave to seek medical care, but requiring those injured on the job to use vacation time for seeking medical care.

The court found that policy ran afoul of Section 132a. “City has made the use of sick leave dependent solely on whether or not the worker is industrially or non-industrially injured. Such disparate and detrimental treatment constitutes illegal discrimination in contravention of section 132a,” the court said. The court reasoned the City could choose not to provide sick leave for any of its employees, but it cannot refuse to permit its use only for workers with job-related injuries.

The case was remanded to the Board for further proceedings to determine the appropriate awards, fines and costs for Andersen pursuant to Section 132a.

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