employee returning from being off of work on workers comp

An employee has been off of work and on workers compensation for 10 months.  Employee is now released to work with no restrictions.  What is required of them employee in regards to their work schedule?  They worked 32-40 hours per week previously 8a-4p MOnday-Friday.  We have since filled that position with someone who has worked that schedule for months now.  We don't have any open positions at this point.  Does employer have to return the original schedule or can that employee be put on PRN status until a position becomes available?  If we have to give back the original work schedule, what about the employee who has been working for months?


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  • mrwhittmrwhitt 2 Posts
    edited August 2015 PMVote Up0Vote Down

    "Return to Work" has to consider Workers’ Compensation, FMLA, and ADA regulations. Added to these would be any State-specific laws, such as in Montana and West Virginia, that require an employer give preference to a returning w/c employee.  Here are three documents that I reference (1) EEOC Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees under the ADA - July 26, 2000; (2) EEOC Enforcement Guidance related to the ADA Amendment Act of 2008 and (3) EEOC Enforcement Guidance: Workers Compensation and the ADA. You can find them as well as all other EEOC guidance documents at the EEOC website under Laws, Regulations, Guidance & MOU's.

    If your employee had been eligible for FMLA, those benefits have been exhausted.

    Because your employee has now been released to full duty no restrictions, workers compensation obligations are no longer a concern (unless you are in a State that has a law about return to work or rehire preference).

    Because your employee has been off work for 10 months, though, obligations under the ADA now have to be considered.
    Question and answer from the EEOC Guidance: Workers Compensation and the ADA - 19. What are the reinstatement rights of an employee with a disability-related occupational injury?      An employee with a disability-related occupational injury is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. In some instances, an employee may request more leave even after the employer has communicated that it would impose an undue hardship to hold open the employee's position... In this situation, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship to continue his/her leave for a specific period of time...If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued leave is not required as a reasonable accommodation if a vacant position at a lower level is also unavailable.
  • Some states' workers' compensation laws specifically address return-to-work related issues.  Some states bar termination due to absence while on workers' compensation claims.  Also, the mere fact the person has been out on workers' compensation puts you at a heightened risk for a claim of retaliation.  Most people recommend seeking legal counsel for your situation and, because the states differ significantly on this issue, I don't think we can say very much to help you.
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