2023 -- H 6079

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LC001892

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS’ COMPENSATION --

BENEFITS

     Introduced By: Representatives Sanchez, Morales, Felix, and Cardillo

     Date Introduced: March 03, 2023

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

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

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

     28-33-47. Reinstatement of injured worker.

     (a) A worker who has sustained a compensable injury shall be reinstated by the worker’s

employer to the worker’s former position of employment upon written demand for reinstatement if

the position exists and is available and the worker is not disabled from performing the duties of the

position with reasonable accommodation made by the employer in the manner in which the work

is to be performed. A workers’ former position is “available” even if that position has been filled

by a replacement while the injured worker was absent as a result of the worker’s compensable

injury. If the former position is not available, the worker shall be reinstated in any other existing

position that is vacant and suitable. A certificate by the treating physician that the physician

approves the worker’s return to the worker’s regular employment or other suitable employment

shall be prima facie evidence that the worker is able to perform the duties.

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

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

employer and a representative of the employer’s employees, and nothing shall exempt any

employer from or excuse full compliance with any applicable provisions of the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq., and chapter 87 of title 42.

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

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

upon any of the following:

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

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

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

same employer that is vacant and suitable;

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

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

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

maximum medical improvement;

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

or suitable alternative employment, prior to reaching maximum medical improvement;

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

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

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

worker requests reinstatement within that time period;

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

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

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

liability for 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 an approved program of rehabilitation specifically designed to provide the

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

(a) of this section, the right of reinstatement shall terminate when the employee concludes or ceases

to participate in the program or eighteen (18) months from the date of injury, whichever is sooner;

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

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

     (2) The right to reinstatement under this section does not apply 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 operating pursuant to a collective bargaining

agreement;

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

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worker’s injury; or

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

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

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

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

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

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

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

of practice of the workers’ compensation court.

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

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

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

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

compensation indemnity benefits and unemployment benefits under this section.

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

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

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

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

be heard by the workers’ compensation court.

     (h) Any employee who has sustained a work-related injury and is capable of performing

the essential functions of a particular job, or who would be capable of performing the essential

functions of such job with reasonable accommodations, shall be deemed to be an employee entitled

to compensation according to § 28-33-1.

     (i) No employer or duly authorized agent of an employer shall discharge, refuse to hire or

in any other manner discriminate against an employee because the employee has exercised a right

afforded by this chapter, or who has testified or in any manner cooperated with an inquiry or

proceeding pursuant to this chapter, unless the employee knowingly participated in a fraudulent

proceeding. Any person claiming to be aggrieved by a violation of this chapter may initiate

proceedings in the appropriate venue for which the alleged violation occurred. An employer found

to have violated this section shall be exclusively liable to pay to the employee lost wages, shall

grant the employee suitable employment, and shall reimburse such reasonable attorneys' fees

incurred in the protection of rights granted as shall be determined by the court. The court may grant

whatever equitable relief it deems necessary to protect rights granted by this section.

     (j) In the event that any right set forth in this section is inconsistent with an applicable

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collective bargaining agreement, such agreement shall prevail. An employee may not otherwise

waive rights granted by this section.

     (k) Upon a determination by the director that a request for data maintained by the

department is intended to be used in such a manner as to violate the purposes of this section, the

director may find that the disclosure of such data constitutes an unwarranted invasion of personal

privacy. Nothing in this section shall be construed to prohibit an insurer’s right to obtain any

information held by the department regarding any employee who has filed a claim against such

insurer.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKERS’ COMPENSATION --

BENEFITS

***

     This act would prevent employers from discriminating against an employee because the

employee has exercised a right afforded by the workers' compensation statute. Also, this act would

define the improper disclosure of employee’s data as an unwarranted invasion of personal privacy.

     This act would take effect upon passage.

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