Can I not re-hire someone who has been out on a workers comp claim?

UPDATED: Oct 17, 2011

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Can I not re-hire someone who has been out on a workers comp claim?

An employee injured himself 9 months ago. We are a small company and had to hire a replacement for his position. We cannot afford to re-hire him. I have read that you can’t refuse to re-hire and I also read that you don’t have to hold his position. Which is correct and do I have to re-hire him?

Asked on October 17, 2011 under Employment Labor Law, Illinois


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The general rule is that an employer is not required to hold a position open or create a new position once an employee is released to return to work. However, if the employer has employment available that falls within the employees restrictions, it should be offered to them. If the employer, without reasonable cause, refuses to rehire the employee when suitable employment is available, they may be able to collect lost wages, in some cases for up to a year.

However, often, an employee on workers compensation is also on FMLA for all or part of the time. If a worker was on FMLA for the past 12 weeks and is returning on time, or if they still have unused FMLA, they are likely entitled to be returned to their job. If the employer did not inform them in writing at the beginning of their short term disability that the leave was being counted as FMLA, they cannot do so now.

Without knowing the specifics of the case it is hard to be more definitive. You my want to consult directly with an employment law attorney as to this.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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