Employees who have been injured may try to return to positions for which they are no longer qualified because they still suffer limitations on the work they can do.
Employers are free to deny reinstatement if the employees’ new limitations mean they can’t perform the essential functions of their jobs, even with accommodations.
Recent case: Dorcas White worked as a social worker until she was injured. She recovered enough to return to work, provided she didn’t have to lift more than 10 pounds.
The weight limitation proved impossible. Her old job required her to transport children, and most of them weighed more than she could lift.
She sued to get her job back, but the 2nd Circuit Court of Appeals rejected her claims.
It concluded she couldn’t meet the essential functions of her job. She also couldn’t prove that she was being singled out in retaliation for filing a workers’ compensation claim since the job requirements pre-existed her injury and claim. (White v. Connecticut Department of Children and Families, No. 08-2042, 2nd Cir., 2009)
Final notes: Always check with your attorney before turning down a reinstatement request. You may be better off providing the employee with a job she can do than keeping her on workers’ compensation. And don’t neglect the ADA-mandated interactive accommodations process. Even if it turns out the employee doesn’t qualify as disabled under the ADA, you need to participate in the process.
- Indefinite suspension is retaliation, even without discharge
- Focus safety efforts on new hires; they're more injury-prone
- If employee loses workers' comp appeal, don't be shy about asking him to pay legal fees
- Have a progressive discipline system? Use it every time
- When using temps, make sure temp agency retains control of employment relationship