If you have a workers’ comp case in Wisconsin, 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 Wisconsin.
In all states, including Wisconsin, it’s illegal for employers to retaliate against employees because of a work injury, which includes firing an employee for filing a workers’ compensation claim. However, unlike other states, Wisconsin gives another level of job protection to injured workers.
Employers in Wisconsin must have reasonable cause to refuse to rehire an injured worker to his or her previous job or to another suitable job which the employee is able and qualified to perform. In other words, the employer needs to have a fair reason, supported by the facts, for not taking you back after your workers’ comp leave. However, your employer doesn’t have to hold your job open indefinitely or create a job that doesn’t exist.
For example, if your doctor has cleared you to return to work without restrictions and your position is still open, your employer would likely need to rehire you. On the other hand, if your employer had to fill the position in your absence because of business needs—or if your employer downsized and cut your whole department—you probably aren’t entitled to that job. However, if your employer has other suitable work within your restrictions, it might need to rehire you for that position.
Employers that unreasonably refuse to rehire injured workers can end up owing penalties to the state and up to one year of lost wages to the employee. (Read our article on hiring a Wisconsin workers’ comp lawyer for more information.)
In some cases, an injured worker will also qualify for job protection under other federal and Wisconsin employment laws.
Disability laws. The federal Americans With Disabilities Act (ADA) and the Wisconsin Fair Employment 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. (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 to employees with 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. Wisconsin has a similar state family and medical leave law, but it only allows two weeks off for the employee’s serious health condition. (See our article on taking FMLA leave to learn more.)