Q. An employee has been out for the past few months on workers’ comp. During his recovery, we placed someone else in his position. His replacement has performed better than the injured employee, and we want to keep the replacement. Do we have to return the original employee to his job following his return from workers’ comp leave? —R.P.
A. This question involves a couple of different employment-law issues. From a pure workers’ compensation perspective, the Indiana’s Workers’ Compensation Law has no guaranteed right to re-employment built into the statute itself. Therefore, while an employee who is injured on the job can expect to receive payment for his or her medical expenses and/or compensation for the injury itself, the employee is not entitled to a return to his or her old position (or any position
Nevertheless, an employee who can show that he or she was terminated solely for requesting workers’ compensation—or that he or she was terminated to prevent the employee from using workers’ compensation—does have a claim for retaliation under Indiana common law.
Additionally, if your organization is covered by the (i.e., it has 50 or more employees) and the employee meets the threshold for FMLA coverage, you do have the obligation to return the employee to his or her original position at the original rate of pay and benefits. This is true irrespective of the quality of work his or her replacement provided.
At best, employers in such situations may decide to keep the replacement employee, but must also return the original employee to the same or a substantially similar position that he or she had prior to taking leave.