A modified offer of employment is not invalidated because it requires claimant to pass a background check

Here, claimant sustained an admitted injury. The following year, respondents offered claimant modified employment. The offer was contingent upon passing a background check. The claimant did not show up for the modified duty and respondents discontinued his temporary total disability benefits. The ALJ held that the modified offer was valid and claimant’s failure to attend the first day of work was a volitional, thereby allowing Respondents to unilaterally terminate benefits. Claimant appealed.

On appeal, claimant argued that the respondents requiring claimant to undergo a background check caused the job to be contingent on the approval of a third party and was therefore not a job that could be accepted by claimant.

ICAO disagreed, holding that it is not the offer of the job, but the acceptance of the offer which gives rise to the background check. Claimant’s acceptance of the job offer was not contingent upon any outside  requirement. ICAO explained that the claimant simply needed to “begin the employment” by showing up on the first day of work. Claimant did not need to complete the background check to “begin” employment. If claimant had simply begun employment, failing to pass a background check or a drug screen would not trigger C.R.S. § 8-42-105(3)(d), which stops temporary benefits if the claimant does not begin work. Consequently, because claimant did not “begin” employment, the statute was triggered and claimant lost his right to temporary benefits. Cruz v. Sacramento Drilling, Inc., W.C. No. 4-999-129-04 (ICAO July 28, 2017).

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 303.414.0782.


From the August 2017 Pollart Miller Newsletter