Worker's Compensation Laws: What happens if I'm hurt at work and my doctor gives me a note to return with restrictions? Does my employer have to take me back?

We get this question all the time, because although New Hampshire law requires employers (with 5 or more employees) to provide injured workers with temporary alternative duty and an 18 month right to reinstatement, this is no guarantee that the employer will take the employee with restrictions back.

In fact, employers often refuse to provide work to injured employees who want to return but who require accommodations due to restrictions associated with the injury.  If this happens to you, there is help available.  An attorney experienced in both worker’s compensation and employment law can help injured employees traverse the rocky road of reinstatement by combining these two areas of law to maximize recovery and job protection.

 

ALTERNATIVE WORK OPPORTUNITIES & TEMPORARY ALTERNATIVE DUTY

Under New Hampshire worker’s compensation law, all employers with five or more employees are required to develop alternative work opportunities for injured workers.  This temporary alternative duty (TAD) is aimed at transitioning employees back to work during their period of recovery after a work injury.

 

RIGHT TO REINSTATEMENT FOR 18 MONTHS

Employers (with five or more employees) are also obligated to offer reinstatement to their  injured employees for up to 18 months from the date of injury.  The employee must request a return to the former position and establish that he or she is not disabled from performing the duties of the position with reasonable accommodation. 

 

LIMITATIONS TO THESE RIGHTS

There are some limitations to both these rights which allow employers to reject an employee's request to return to work. For example, the law does not require that an employer take back an injured employee into an alternative position if there is no work available within the employee’s restrictions. Essentially, the employer is not required to make up a job in order to meet the employee’s restrictions. In addition, the New Hampshire workers compensation law is not clear as to how long an employer must provide an employee with temporary alternative duty.

 

There are limitations to the right to reinstatement as well.  This right can be limited by a valid collective bargaining agreement, which contains bumping or seniority provisions.  It also does not apply in certain cases, such as in the field of construction, when a project is completed by the time the employee is able to return.  Furthermore, in order to get the job back, the former position has to still “exist” and be “available” when the employee is ready to return.

 

Luckily, the position must be considered “available” even if it has been filled by a replacement while the injured worker was absent.  Also, if the position is eliminated and doesn’t “exist”, the employee has the right to be reinstated in any other existing position which is vacant and suitable with reasonable accommodation. 

 

One of the least understood aspects of this right to reinstatement is the provision that the employee must not be disabled from performing the duties of the position, “...with reasonable accommodations for the employee’s limitations.” The worker’s compensation law does not define what constitutes a reasonable accommodation specific to this setting of work injury. 

 

COMBINE EMPLOYMENT LAW WITH WORKER’S COMPENSATION LAW

These gaps in the worker's compensation law do not leave injured employees unprotected.  In the case of reinstatement, there is a broad range of laws, policies and contract provisions which can be brought to bear in order to maximize protection.  By combining employment law rights with rights under the workers’ compensation laws in NH, injured workers can find far greater protections.

 

In addition to the rights to reinstatement and temporary alternative duty under workers’ compensation, there are other state and federal laws and perhaps even employer policies and/or contract provisions which employees can depend upon to further protect their right to accommodated work and reinstatement.

 

OTHER PROTECTIONS FOR WORKERS UNDER STATE & FEDERAL LAW

Perhaps most significant are the laws protecting individuals with disabilities. New Hampshire employees who are injured at work and suffer with a disability can find protection under New Hampshire disability law RSA 354-A and under the federal law in accordance with title VII of the Americans With Disabilities Act.  These laws do provide clear guidelines as to what constitutes a reasonable accommodation.  If an employee can perform the essential functions of the job with a reasonable accommodation, such as adjustments to weights lifted, height of a work table or even to provided breaks, and if the accommodations do not constitute an undue hardship, the employee has to take the employee back.  The process to determine what is a reasonable accommodation, without hardship to the employer requires an interactive and cooperative back and forth process between employee and employee.  It’s helpful to have an advocate who can assist in this. 

 

CONTRACTS, UNION AGREEMENTS AND EMPLOYER POLICIES

Injured employees might also find additional protection with respect to a right to accommodation and/or right to reinstatement under their employer’s personnel policies, or an employee contract or union agreement. Often times, employees find that these policies or contract provisions provide additional protections which can be used in combination with the worker's compensation law and with the laws regarding disability.  Eligible employees might be able to combine use of sick leave, vacation, The Family Medical Leave Act, policies providing leave of absence, or union rights to extend or expand upon the rights under workers compensation. 

 

It's important that an employee review all of these possibilities when coming up against opposition to a request to return to work.  Contact a worker's compensation attorney near you who is experienced in both employment and worker’s compensation law and take advantage of a free phone consultation to discuss your questions about your right to return to work.