Q. We have an employee who has been off work for more than 10 months because of a workers’ comp-covered injury. We have no idea when she may possibly be able to return to work. Are we absolutely required under the law to give this employee her job back whenever she believes she is ready to return to work, no matter how long she has been out?
A. No. Situations of lengthy absences from work due to injuries covered by workers’ compensation are among the most frustrating for employers to deal with. These cases are often complicated by a common but incorrect belief that employees experiencing on-the-job injuries have an absolute entitlement to job reinstatement once their condition improves enough to allow them to return to work (with or without medical restrictions).
There is no such right under Minnesota workers’ compensation law.
The best way for employers to manage situations like this is to actively monitor the length of workers’ comp-related absences from work. If the circumstances support it, decide at some point that the employee’s employment is to be terminated. Then let the employee reapply for a job when he or she is able to work again.
You are allowed to terminate the employment of such a worker, but you must be able to identify legitimate and objectively based business reasons why it has become an undue hardship to hold open the injured employee’s job while she is out of work because of injury.
Be careful when making such a decision. If you fail to perform a pre-termination analysis, or your decision wasn’t really supported by adequate, identifiable and objective reasons, you could be at risk of being sued for workers’ comp retaliation or failure to accommodate a disability.