Too often, employees who are injured on the job face the devastating consequence of having no job to return to when their injuries have healed. Fortunately, the Wisconsin Statutes that address workers compensation incorporate some protections for workers in this situation.
Under Section 102.35(3) of the Wisconsin Statutes, an employer cannot unreasonably refuse to rehire an employee injured in the course of employment when the employer has suitable employment available that fits within the employee’s physical and mental limitations. Under the same statute, an employer who violates this provision can be liable to the employee for up to one year in wages the employee lost during the period the employer unreasonably refused to rehire the employee. This is in addition to other benefits that may be available to the employee.
Wisconsin courts that have interpreted Section 102.35(3) have set forth elements necessary to establish that an employer unreasonably refused to hire an employee who was injured at work. The injured worker must be prepared to prove that he or she was an employee subject to the workers compensation statutes at the time of the injury, the injury occurred in the course of employment, the employee asked to return to work, and such request was unreasonably refused by the employer. See Universal Foods Corp. v. Labor & Industry Review Com’n, 116 Wis.2d 410 (Wis.App. 1991) and West Allis School Dist. v. Dep’t of Indus., Labor & Human Relations, 116 Wis. 2d 410 (1984). If the injured worker establishes these elements, the burden then falls on the employer to prove that the employee could not do the work applied for and that no other suitable work was available.
Whether or not an employer’s refusal to rehire an injured worker is unreasonable will generally depend on the unique facts and circumstances of each case. Under the Universal Foods Corp. case referenced above, it is unreasonable for an employer to refuse to rehire an injured worker because of the work related injury. However, as a general rule, a refusal to rehire is unreasonable when it is based on circumstances that are unfair, unjust, or unfit under the circumstances.
In some cases, an employer might rehire an employee who was injured at work in order to comply with the law, and then immediately terminate the employee. Such rehiring was been found to be impermissible by the Wisconsin Supreme Court in the West Allis School District case referenced above. The Court concluded that the intention of term “rehire” in the law is that the employer must reemploy the injured employee with the intention of continuing to keep the employee on the job. An employer cannot merely rehire an employee to meet the technical requirements of the law and then discharge the employee shortly thereafter. Thus, an employer rehiring an injured worker has a duty to act in good faith under the workers compensation statutes.
By requiring employers to act in good faith and return injured workers back to work when they can reasonably do so, the Wisconsin workers compensation laws attempt to provide a pathway for injured workers to return to work.
Jim is an attorney with Halling & Cayo, S.C. His practice focuses on workers compensation, personal injury, insurance litigation, and estate planning. He is a trained mediator and has additional experience in family law and general civil litigation.
Email Jim: [email protected]