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Injured worker reapplying? Beware ADA suit

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in Employee Benefits Program,Human Resources

You may be naturally disinclined to rehire a former employee who was off work for years because of an on-the-job injury. But that could be a big legal mistake, especially since he is now disabled.

Simply refusing to consider the application could land you in court on an ADA claim based on discrimination against those with disabilities.

On the other hand, you don’t have an obligation to notify the former employee about open positions.

Recent case: David Maresca worked as a cable television installer for about four years until he was hurt in an on-the-job auto accident. For the next six years, he collected total disability benefits under the company’s workers’ compensation plan. He continued to be covered by the employer’s group health insurance plan.

Finally, the cable company filed a request to terminate his benefits because it believed he had recovered. It settled the case with a lump-sum payment and then terminated Maresca.

Later, Maresca sued, alleging that he was disabled and had not been rehired or offered a new position.

But the cable company pointed out that Maresca hadn’t applied for any jobs since he was injured. That meant the company never had an opportunity to accommodate him or turn him down. It argued it didn’t have an independent responsibility to seek out former employees for open spots.

The 3rd Circuit Court of Appeals agreed. Employers don’t have to guess whether former employees might be interested in a job and aren’t obligated to chase after them. Former employees or potential applicants can’t complain that they weren’t hired if they never bothered to apply in the first place. (Maresca v. Blue Ridge Communications, No. 09-2470, 3rd Cir., 2010)

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