Question: One of our employee was injured at work. As per restrictions listed on his doctor’s note, we adjusted his duties. We also lowered his hourly rate. Now the doctor sent a note saying this employee is fully recovered and can go back to his previous position. However, the employee who took over his original duties has been delivering better performance than the employee who was injured. Are we required to have the employee perform his original duties and change back his hourly rate? Or we can have him sign a new contract and keep him doing the adjusted duties with the lower hourly rate? We are in Nevada.
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Answer from the experts at HR.BLR.com:
Thank you for your inquiry. Most state workers’ compensation laws do not require employers to reinstate injured employees to the same or similar position. Rather, workers’ compensation laws are intended to compensate employees for time off related to their injuries and protect employers from unlimited liability for work-related injuries. They are not intended to protect employees’ jobs. A few states do require reinstatement, but it does not appear that Nevada does.
As with many state worker’s compensation laws, however, Nevada’s workers’ compensation law does prohibit retaliation—so if you do not reinstate the employee to his former position, you should be able to show your legitimate, nondiscriminatory, nonretaliatory reasons for the decision.
In addition, you may have an obligation to reinstate the employee under the Family and Medical Leave Act (FMLA). If the employee is covered under the FMLA and has not exhausted the 12 weeks of leave provided by that law prior to taking the light-duty position, he is entitled to reinstatement to the same or equivalent position.
The FMLA does not distinguish between work-related and nonwork-related injuries, and its regulations indicate that a serious health condition may occur “on or off the job.” (See 29 C.F.R. sec. 825.207(e)). Accordingly, whenever an employee is injured on the job and needs time off to recover, the employer immediately should determine if the employee also is eligible for leave under the FMLA. So, if the employee’s workers’ compensation injury is also considered a “serious health condition” under the FMLA, he may be eligible for FMLA leave for the injury.
If the employee is eligible for FMLA leave because of the workers’ compensation injury and the health care provider treating an employee on FMLA leave for a workers’ compensation injury certifies the employee is able to return to a “light duty job” but is unable to return to the same or equivalent job, the FMLA regulations indicate that the employee may decline the employer’s offer of a light duty job. As a result, the employee may lose workers’ compensation payments, but would be entitled to remain on unpaid FMLA leave until the 12-week entitlement is exhausted since the employee is unable to perform his regular job. (See 29 C.F.R. sec. 825.702(d)(2)).
If the employee is covered by the FMLA and voluntarily accepts a light duty position instead of taking FMLA leave because he cannot perform his regular job, the time spent working in the light duty job does not count toward the employee’s 12 weeks of FMLA leave, and if the employee has not exhausted the 12-week FMLA leave, the employee does not waive his right to reinstatement under the FMLA.
That is, at the conclusion of the light duty assignment, the employee has the right to be reinstated to his previous position (or equivalent position) provided the employee can perform the essential functions of the position. Furthermore, an employee’s right to reinstatement while in a light duty assignment expires at the end of the 12-month leave year that the employer uses to calculate FMLA leave. (See 29 C.F.R. sec. 825.220(d)).
There is some chance that if you can show that the employee’s performance was poor prior to taking leave that you may be able to deny him reinstatement to his original job. The FMLA does not protect employees who are disciplined or terminated for reasons unrelated to the FMLA leave. The regulations specifically state that an employee has “no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” (See 29 C.F.R. sec. 825.216(a)).
Thus, if you have documented performance problems the employee experienced prior to the FMLA leave that would have resulted in a demotion for the employee even if he had not taken FMLA leave, you may be able to leave him in the current adjusted job with the lower pay.
However, if the employee’s performance simply is not as good as the employee who replaced him, you likely will be facing a FMLA claim by the employee since the FMLA requires reinstatement to the same or equivalent position.
Accordingly, because of the complexities of FMLA and workers’ compensation injuries, you should discuss these issues with an attorney.