2012 -- H 8094

=======

LC02495

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION

BENEFITS

     Introduced By: Representative Stephen R. Ucci

     Date Introduced: April 26, 2012

     Referred To: House Labor

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Section 28-33-47 of the General Laws in Chapter 28-33 entitled "Workers'

1-2

Compensation - Benefits" is hereby amended to read as follows:

1-3

     28-33-47. Reinstatement of injured worker. -- (a) A worker who has sustained a

1-4

compensable injury shall be reinstated by the worker's employer to the worker's former position

1-5

of employment upon written demand for reinstatement, if the position exists and is available and

1-6

the worker is not disabled from performing the duties of the position with reasonable

1-7

accommodation made by the employer in the manner in which the work is to be performed. A

1-8

workers' former position is "available" even if that position has been filled by a replacement

1-9

while the injured worker was absent as a result of the worker's compensable injury. If the former

1-10

position is not available, the worker shall be reinstated in any other existing position that is vacant

1-11

and suitable. A certificate by the treating physician that the physician approves the worker's

1-12

return to the worker's regular employment or other suitable employment shall be prima facie

1-13

evidence that the worker is able to perform the duties.

1-14

      (b) The right of reinstatement shall be subject to the provisions for seniority rights and

1-15

other employment restrictions contained in a valid collective bargaining agreement between the

1-16

employer and a representative of the employer's employees, including a worker who works out of

1-17

a hiring hall, and nothing shall exempt any employer from or excuse full compliance with any

1-18

applicable provisions of the Americans with Disabilities Act, 42 U.S.C. section 12101 et seq., and

1-19

chapter 87 of title 42.

2-1

      (c) Notwithstanding subsection (a) of this section:

2-2

      (1) The right to reinstatement to the worker's former position under this section

2-3

terminates upon any of the following:

2-4

      (i) A medical determination by the treating physician, impartial medical examiner, or

2-5

comprehensive independent health care review team that the worker cannot, at maximum medical

2-6

improvement, return to the former position of employment or any other existing position with the

2-7

same employer that is vacant and suitable;

2-8

      (ii) The approval by the workers' compensation court of a vocational rehabilitation

2-9

program for the worker to train the worker for alternative employment with another employer;

2-10

      (iii) The worker's acceptance of suitable employment with another employer after

2-11

reaching maximum medical improvement;

2-12

      (iv) The worker's refusal of a bona fide offer from the employer of light duty

2-13

employment or suitable alternative employment, prior to reaching maximum medical

2-14

improvement;

2-15

      (v) The expiration of ten (10) days from the date that the worker is notified by the insurer

2-16

or self-insured employer by mail at the address to which the weekly compensation benefits are

2-17

mailed that the worker's treating physician has released the worker for employment unless the

2-18

worker requests reinstatement within that time period;

2-19

      (vi) The expiration of thirty (30) days after the employee reaches maximum medical

2-20

improvement or concludes or ceases to participate in an approved program of rehabilitation, or

2-21

one year from the date of injury, whichever is sooner, provided, in the event a petition to establish

2-22

liability for an injury is filed, but not decided within one year of the date of injury, within twenty-

2-23

one (21) days from the first finding of liability. Notwithstanding the foregoing, where the

2-24

employee is participating in an approved program of rehabilitation specifically designed to

2-25

provide the employee with the ability to perform a job for which he or she would be eligible

2-26

under subsection (a) of this section, the right of reinstatement shall terminate when the employee

2-27

concludes or ceases to participate in the program or eighteen (18) months from the date of injury,

2-28

whichever is sooner;

2-29

      (vii) Except where otherwise provided under a collective bargaining agreement, the

2-30

approval by the court of a settlement pursuant to chapters 29 -- 38 of this title.

2-31

      (2) The right to reinstatement under this section does not apply to:

2-32

      (i) A worker hired on a temporary basis;

2-33

      (ii) A worker employed in a seasonal occupation;

3-34

      (iii) A worker who works out of a hiring hall operating pursuant to a collective

3-35

bargaining agreement;

3-36

      (iv)(iii) A worker whose employer employs nine (9) or fewer workers at the time of the

3-37

worker's injury;

3-38

      (v)(iv) A worker who is on a probationary period of less than ninety-one (91) days.

3-39

      (d) Any violation of this section is deemed an unlawful employment practice. If the

3-40

employee applies for reinstatement under this section and the employer in violation of this section

3-41

refuses to reinstate the employee, the workers' compensation court is authorized to order

3-42

reinstatement and award back pay and the cost of fringe benefits lost during the period as

3-43

appropriate. Determinations of reinstatement disputes shall be rendered by the workers'

3-44

compensation court in accordance with this section and chapters 29 -- 38 of this title, and the

3-45

rules of practice of the workers' compensation court.

3-46

      (e) When an employee is entitled to reinstatement under this section, but the position to

3-47

which reinstatement is sought does not exist or is not available, the employee may file for

3-48

unemployment benefits as if then laid off from that employment, and unemployment benefits

3-49

shall be calculated pursuant to section 28-42-3(4); provided, that an employee cannot collect both

3-50

workers' compensation indemnity benefits and unemployment benefits under this section.

3-51

      (f) The education division of the department of labor and training shall provide

3-52

information to employees who receive benefits under this title of the provisions of this section.

3-53

      (g) Any requests for reinstatement determinations pending before the director prior to

3-54

September 1, 2000, will remain at the department for resolution. Any requests after this date will

3-55

be heard by the workers' compensation court.

3-56

     SECTION 2. This act shall take effect upon passage.

=======

LC02495

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - WORKERS' COMPENSATION

BENEFITS

***

4-1

     This act would extend the right to reinstatement to the workers working out of a hiring

4-2

hall operating pursuant to a collective bargaining agreement.

4-3

     This act would take effect upon passage.

=======

LC02495

=======