TITLE 28
Labor and Labor Relations

CHAPTER 28-33
Workers' Compensation – Benefits

SECTION 28-33-47


   § 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 health care 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 worker's injury;

   (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.

History of Section.
(P.L. 1992, ch. 31, § 11; P.L. 1995, ch. 44, § 2; P.L. 2000, ch. 491, § 4; P.L. 2001, ch. 256, § 4; P.L. 2001, ch. 355, § 4; P.L. 2002, ch. 119, § 3; P.L. 2002, ch. 280, § 3; P.L. 2005, ch. 410, § 14.)