Q. One of our employees went on disability after a motorcycle accident. We terminated him at his request, as he wanted to cash out his 401(k). His doctor recently released him from disability, and he’s seeking reemployment for a different position. Our owner is concerned that if he doesn’t offer the ex-employee a job, we may face legal retribution. And he’s concerned that if we do bring him back, we’ll end up with a workers’ comp claim from a slip/fall injury. Do we have any obligation to rehire this employee?
A. You are not obligated to rehire him. However, you should have a legitimate business reason if you decide not to rehire. The owner’s concern that, if rehired, he might file a workers’ comp claim is not a lawful reason to refuse to rehire—and would form the basis of a workers’ comp retaliation claim. If you have any open positions for which the employee is qualified, you should consider him and decide whether he is the right candidate without considering his prior disability leave or the potential for a workers’ comp claim.
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- Serial complainer? She probably can't show retaliation
- No jury trials for disability retaliation—but you still must handle complaints properly
- Offhand remarks don't prove age discrimination
- Changing company name doesn't end legal liability