If you have a workers’ comp case in New Mexico, 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 New Mexico.
In all states, including New Mexico, it’s illegal for employers to retaliate against employees because they have exercised their rights under the workers’ compensation laws, including filing a workers’ compensation claim. Employers that fire employees in a retaliatory way must reinstate the employee and pay a penalty to the workers’ compensation fund.
Retaliation can be difficult to prove because it depends on your employer’s motive for firing you. If your termination happened shortly after you filed your claim, your boss made negative comments about you using the workers’ comp system, or you were fired for poor performance despite excellent performance reviews, you should consult with a lawyer about a retaliation case. (To learn more, see our article on the cost of hiring a workers’ comp lawyer in New Mexico.)
New Mexico employers are not required to hold your job open for you while you’re on leave. However, if the job is still available once you reach maximum medical improvement (MMI), you might be entitled to reinstatement. If your employer is hiring, it must rehire you to your pre-injury job or a similar modified job, as long as:
New Mexico employers must also hire an injured worker for any job that pays less than the pre-injury job, as long as the employee is qualified and has been cleared to return to work.
In some cases, an injured worker will also qualify for job protection under other federal and New Mexico employment laws.
Disability laws. The federal Americans With Disabilities Act (ADA) and the New Mexico Human Rights Act 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. (See our overview article on the ADA to learn more.)
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 for a serious health condition. 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. (See our article on taking FMLA leave to learn more.)
Workers who can’t return to their normal jobs due to a permanent partial disability can receive vocational rehabilitation services from the state. 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 Department of Workforce Solutions.