What reinstatement rights do employees have when they are out on workers' compensation and are either not eligible for FMLA leave or have exhausted their FMLA leave?

When FMLA leave has been exhausted or does not apply, job restoration rights will depend upon state workers’ compensation (WC) law, possible Americans with Disabilities Act (ADA) accommodation and company policies.

Some state workers’ compensation laws do include a reinstatement or rehire preference provision, though many do not. For example, Montana law requires employers to provide rehire preference to an injured worker who is able to return to work within two years of his or her date of injury (§ 39-71-317, MCA). Massachusetts also provides rehire preference to an injured worker provided that a suitable job is available (G.L. c. 152, Section 75A). Check state workers’ compensation laws to ensure compliance.

If state WC law does not require job restoration, and the employer is subject to the ADA, the employer may be required to make a reasonable accommodation of time off for the employee. Such an accommodation may include an extended leave of absence and entitlement to return to the same job unless the employer demonstrates that holding the job would impose an undue hardship. If the employer cannot reinstate the employee to the same job, then it must offer any other vacant, equivalent position. If there are no equivalent positions available, then the employer must offer any vacant position that the employee is qualified to perform, even if it is at a lower level.

State disability discrimination laws may also require such accommodations, especially for employers with fewer than 15 employees and therefore not subject to the ADA.

In addition to state and federal laws requiring reinstatement, company policies and benefits plan documents also should be reviewed for information on personal leave benefits, seniority rights, benefit reinstatement, benefit accruals, and any additional return-to-work guidelines.