A reader wrote in with this question: “I was out on workers’ comp after an accident. Now my boss says they won’t have a position for me when I’m ready to return. Is that legal?” Job reinstatement after an injury accident at work is often a sensitive subject. After all, you were hurt while doing your job. But the truth is, every state has its own workers’ compensation laws and processes. And those laws determine how and when your employer must hold your job after filing workers’ comp — or not.
So, here’s the most likely answer to this reader’s question: Yes, it’s legal in most states. That means if you’re out on workers’ comp leave, your employer may legally hire someone else to fill your position. However, four states have laws designed to make sure you still have a job after workers’ comp leave.
Which States Have Job Reinstatement Laws for Employees on Workers’ Comp?
Most states do not offer protection for employees to return to their same job positions after workers’ comp. But a few states do have job reinstatement laws, namely:
Each of these states’ job reinstatement laws are quite different from one another. Rhode Island’s laws provide the most job protections. Rhode Island law requires that employers return employees to their former position upon written demand for up to 12 months. And that still applies even if your employer hired someone else for your position while you’re out on workers’ comp. You must be able to fulfill your required job duties, even if you need reasonable accommodation to do so.
In Oklahoma an employer cannot fire an employee who’s collecting workers’ compensation ― even one that’s absent from work. And in Montana and Massachusetts, preference when choosing someone for a position is given to employees who have been absent due to workers’ comp.
In Montana, the law requires employers to give preference to former employees who can return to work within 2 years after a workplace injury over other applicants. In Massachusetts, the protection makes employers rehire former employees whenever a suitable job is available ahead of other new applicants. While these are not strictly job reinstatement laws, they place you at the top of the rehire list for your previous employer.
FMLA and the ADA: Federal Protections for Injured, Sick, or Disabled Workers
In all other states, then there is no legal way to get your previous job back after workers’ comp leave. However, you might claim job protections under two other federal laws: ADA and FMLA.
How the ADA Might Help You Get Your Job Back After Workers’ Comp Leave
Congress passed the ADA, or Americans with Disabilities Act, in 1990.They designed this law to improve opportunities for individuals with disabilities. This includes reducing barriers to gaining and keeping a full-time job. The ADA applies equally to everyone with a disability, whether it resulted from an on-the-job accident or any other reason.
The ADA requires employers to provide reasonable accommodations for employees so they can fulfill their job duties. It also applies to workers who took time off because of workers’ comp and need accommodations to return to work. The ADA might also provide regulations that protect workers’ time away from their jobs while they recover.
However, not all workers’ comp injuries can qualify for these ADA protections. The EEOC (Equal Employment Opportunity Commission) has strict rules around who’s eligible to claim these job protections under the ADA. Furthermore, ADA only applies to companies with at least 15 employees working for 20+ calendar weeks in the past year.
Job Reinstatement After FMLA Leave Is Possible, but Not Guaranteed
The second job-related federal protection you might qualify for is the FMLA, or Family and Medical Leave Act. Congress passed FMLA in 1993 to protect workers taking time off to care for family members or attend to their own medical needs. Generally, FMLA only applies to companies with 50 or more employees working 20 or more weeks in the preceding year. Not all employees working for companies subject to FMLA rules qualify for that coverage, however. To qualify for FMLA leave and its associated job reinstatement protections, you must:
- First work for at least 12 months for the same employer before requesting FMLA.
- Have already worked at least 1,250 hours in the previous 12 months before submitting an FMLA request to your employer.
So, the question then becomes: Can you prove you qualify for protection under either the ADA or FMLA? If so, then federal law may compel job reinstatement in your specific case after taking workers’ comp leave.
Do I Need an Attorney if My Boss Says I Can’t Have My Former Job Back?
Because of the intricate nuances of both the ADA and FMLA, it’s smart to speak with an attorney for free. An experienced lawyer can clearly explain your chances of getting your job back after filing for workers’ comp. They can also help you file the right paperwork on time and meet all other requirements for workers’ compensation.
The first step in securing job reinstatement after your accident is to request a no-cost, no-obligation consultation. If your case doesn’t win, you pay your lawyer $0. And if you do win, then you’ll only pay one small fee out of your cash settlement.
Want to connect with free expert workers’ comp claim help by phone? Click the button below to start your free online benefits quiz and see if you may qualify:
Lisa Allen is a writer and editor who lives in suburban Kansas City. She holds MFAs in Creative Nonfiction and Poetry, both from the Solstice Low-Residency Program in Creative Writing at Pine Manor College. Prior to becoming a writer, Lisa worked as a paralegal, where she specialized in real estate in and around Chicago.