§ 28-33-47 - Reinstatement of injured worker.
SECTION 28-33-47
§ 28-33-47 Reinstatement of injuredworker. – (a) A worker who has sustained a compensable injury shall be reinstated by theworker's employer to the worker's former position of employment upon writtendemand for reinstatement, if the position exists and is available and theworker is not disabled from performing the duties of the position withreasonable accommodation made by the employer in the manner in which the workis to be performed. A workers' former position is "available" even if thatposition has been filled by a replacement while the injured worker was absentas a result of the worker's compensable injury. If the former position is notavailable, the worker shall be reinstated in any other existing position thatis vacant and suitable. A certificate by the treating physician that thephysician approves the worker's return to the worker's regular employment orother suitable employment shall be prima facie evidence that the worker is ableto perform the duties.
(b) The right of reinstatement shall be subject to theprovisions for seniority rights and other employment restrictions contained ina valid collective bargaining agreement between the employer and arepresentative of the employer's employees, and nothing shall exempt anyemployer from or excuse full compliance with any applicable provisions of theAmericans with Disabilities Act, 42 U.S.C. § 12101 et seq., and chapter 87of title 42.
(c) Notwithstanding subsection (a) of this section:
(1) The right to reinstatement to the worker's formerposition under this section terminates upon any of the following:
(i) A medical determination by the treating physician,impartial medical examiner, or comprehensive independent health care reviewteam that the worker cannot, at maximum medical improvement, return to theformer position of employment or any other existing position with the sameemployer that is vacant and suitable;
(ii) The approval by the workers' compensation court of avocational rehabilitation program for the worker to train the worker foralternative employment with another employer;
(iii) The worker's acceptance of suitable employment withanother employer after reaching maximum medical improvement;
(iv) The worker's refusal of a bona fide offer from theemployer of light duty employment or suitable alternative employment, prior toreaching maximum medical improvement;
(v) The expiration of ten (10) days from the date that theworker is notified by the insurer or self-insured employer by mail at theaddress to which the weekly compensation benefits are mailed that the worker'streating physician has released the worker for employment unless the workerrequests reinstatement within that time period;
(vi) The expiration of thirty (30) days after the employeereaches maximum medical improvement or concludes or ceases to participate in anapproved program of rehabilitation, or one year from the date of injury,whichever is sooner, provided, in the event a petition to establish liabilityfor an injury is filed, but not decided within one year of the date of injury,within twenty-one (21) days from the first finding of liability.Notwithstanding the foregoing, where the employee is participating in anapproved program of rehabilitation specifically designed to provide theemployee with the ability to perform a job for which he or she would beeligible under subsection (a) of this section, the right of reinstatement shallterminate when the employee concludes or ceases to participate in the programor eighteen (18) months from the date of injury, whichever is sooner;
(vii) Except where otherwise provided under a collectivebargaining agreement, the approval by the court of a settlement pursuant tochapters 29 – 38 of this title.
(2) The right to reinstatement under this section does notapply to:
(i) A worker hired on a temporary basis;
(ii) A worker employed in a seasonal occupation;
(iii) A worker who works out of a hiring hall operatingpursuant to a collective bargaining agreement;
(iv) A worker whose employer employs nine (9) or fewerworkers at the time of the worker's injury;
(v) A worker who is on a probationary period of less thanninety-one (91) days.
(d) Any violation of this section is deemed an unlawfulemployment practice. If the employee applies for reinstatement under thissection and the employer in violation of this section refuses to reinstate theemployee, the workers' compensation court is authorized to order reinstatementand award back pay and the cost of fringe benefits lost during the period asappropriate. Determinations of reinstatement disputes shall be rendered by theworkers' compensation court in accordance with this section and chapters 29– 38 of this title, and the rules of practice of the workers' compensationcourt.
(e) When an employee is entitled to reinstatement under thissection, but the position to which reinstatement is sought does not exist or isnot available, the employee may file for unemployment benefits as if then laidoff from that employment, and unemployment benefits shall be calculatedpursuant to § 28-42-3(4); provided, that an employee cannot collect bothworkers' compensation indemnity benefits and unemployment benefits under thissection.
(f) The education division of the department of labor andtraining shall provide information to employees who receive benefits under thistitle of the provisions of this section.
(g) Any requests for reinstatement determinations pendingbefore the director prior to September 1, 2000, will remain at the departmentfor resolution. Any requests after this date will be heard by the workers'compensation court.