If you have a workers’ comp case in Hawaii, odds are that you’ll eventually be able to return to work in some shape or form. But what if there’s no job to return to? Can your employer fire you while you’re out on workers’ comp leave? Or refuse to take you back once you’ve recovered? Must it offer you an alternative job that fits your qualifications? Below, we explain the right to reinstatement in workers’ comp in Hawaii..
Hawaii’s Fair Employment Practices (FEP) law prohibits employers from firing, refusing to hire, or otherwise discriminating against employees because the employee suffered a work injury or filed a workers’ compensation claim. Unlike many states, Hawaii has strong job protections for injured workers. Employers may only fire an injured employee if:
This means that your employer must reinstate you if you’re able to do your regular job or find you another suitable position if you’re not. However, there is an exception for very small employers. Those with two or fewer employees at the time of the work injury are not required to reinstate injured workers.
Even if an employer lawfully terminates an injured worker under the reinstatement provisions above, the employer must give the worker a hiring preference if another position opens up. The worker must be given first preference for any position that he or she is qualified to perform. The preference ends once the worker finds new employment after the termination. The hiring preference does not apply to employers with two or fewer employees.
For example, suppose you work as a machine operator for a manufacturing business. However, because of a work injury you are no longer able to perform that position. The employer doesn’t have any other available work, so it fires you. Six months later, an assembly line position opens up for which you are qualified. Because you haven’t found other work yet, your employer must give you first preference for the job.
In some cases, an injured worker will also qualify for job protection under other federal and Hawaii employment laws.
Disability laws. The federal Americans With Disabilities Act (ADA) and the Hawaii Fair Employment Practices (FEP) law require most employers to provide reasonable accommodations to workers with disabilities. If your work injury is serious enough to qualify as a disability, your employer will need to work with you to try to keep you employed. This might include giving you additional time off, changing your work duties, or providing necessary equipment, for example.
Family and medical leave laws. The federal Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to provide up to 12 weeks of job-protected leave. If you have a relatively serious work injury, but it only keeps you out for a few months or less, you might be entitled to return to your normal job. Hawaii has a state family and medical leave law, but it doesn’t allow employees to take job-protected leave for their own illnesses.
Workers who can’t return to their normal jobs due to a permanent partial disability can receive vocational rehabilitation services through workers’ comp. This includes job training, career counseling, job placement services, and other assistance finding a new job. In some states, you can receive unemployment benefits if you're willing and able to return to work but your employer doesn’t have a job for you. To find out if you’re eligible, contact the Hawaii Department of Labor and Industrial Relations.