The bottom line is that if your doctor says you’re not ready, then your employer cannot force you to return to work. Even if you feel physically well enough to return to work, if your treating physician has not cleared you to do so, you should listen to their advice.
Depending on the nature of your workplace injury, you may not even be capable of performing the same tasks or duties that you did before the injury took place. This is where a return-to-work policy comes into play. These policies are designed to help create a plan for returning to work in a safe and timely manner, usually by providing injured employees with temporary light-duty positions so they can continue to earn money while recuperating. While performing light-duty work or modified tasks, you may be still entitled to temporary partial disability (TPD) which typically equal two-thirds of your previous wages minus what you are making in your new position.
You’re not required to accept a modified position (especially if you feel that it may strain or hinder your recovery) but please note that if you refuse this could affect your benefits or employment status.
What’s a Return-to-Work Policy?
The ideal return-to-work policy reflects your employer’s commitment to helping you get back to work in a safe and timely way while accommodating any temporary or permanent disabilities. Accommodations may include:
Retraining for new and/or temporary work tasks
Modified work area (i.e. wheelchair accessible etc.)
Restructuring of work hours (rescheduling work shifts or restricting work hours)
Adaptive equipment to increase employee comfort while performing work tasks (i.e. gel foot mats for employees that stand all day)
Complying with your employer’s return-to-work policy shows that you are serious about your future work. But if your injury/illness prevents you performing the tasks assigned to you, or your doctor has not cleared you to return to regular or modified work assignments, then no employer can force you to do so. Your employer also cannot legally fire you simply because your workplace injury prevents you from performing the same tasks you did before becoming injured.
Communicate with your doctor about any return-to-work concerns. And let your employers know if certain tasks or motions required of your job (or modified light-duty position) are painful.
When do I have to return to work?
Your employer and insurance company do not want to pay benefits any longer than absolutely necessary. But the timing of your return to work is ultimately determined by your medical evaluation. This is why choosing the right treating physician is so important. Their evaluation will provide a disability rating, which will then dictate the timing of your return to work. And your employer and insurance company will likely hold you to that timing.
Now, because the date of your return to work is determined right after your injury or illness occurs, it may not be completely accurate. People heal at different speeds, and factors outside of work (stress, family obligations etc.) can hinder someone’s recovery process. Let’s say that after an initial medical evaluation of a leg injury, your doctor approved a return to normal work duties in 3 weeks. But because obligations outside of work you’ve not been able to properly rest as much as you would’ve liked, and even after the 3 weeks your leg is not yet healed to the point of returning to normal working conditions. Returning to work in this instance may even exacerbate or worsen the injury.
If your employer refuses to postpone your recovery date, you and your doctor can file a complaint to protest the medical information being cited in the Notice of Ability to Return to Work form. Keep in mind that this kind of litigation can take months, sometimes years, to come to a resolution. The best course of action is to maintain open communication with your treating physician so that your return to work date accurately reflects the amount of time you need to recover and rest.
Can I be fired for not returning to work?
If you refuse to return to work because you simply don’t like your new modified or light-duty position or because you want to keep receiving full wage replacement benefits, you employer has the right to fire you. Not showing up by the date specified in your Notice of Ability to Return to Work is viewed as negligence or job abandonment in most states. This means that you would likely lose both your workers’ compensation benefits and your job.
But sometimes an employer is just not able to offer a modified or light duty position for a disabled or recovering worker. This tends to happen more with smaller companies who have limited resources. Smaller companies might not have the same range of positions or flexibility of a larger company. And creating a modified work schedule, restructuring certain roles, or acquiring new equipment and infrastructure to accommodate an injured worker just isn’t feasible. So unfortunately, while employers cannot fire you because of a workplace injury, you can still lose your job.
If you’re unsure about whether you should return to work, what your employer’s return-to-work policy legally entails, or what benefits you are entitled to while recovering, don’t hesitate to contact a workers’ compensation attorney. Because legal background or no, any employee injured on the job is entitled to benefits. And Barsoum Law is committed to help. We offer a personal focus and individualized care that large corporate firms do not. Our multilingual, multicultural team is dedicated to making sure you obtain the compensation you deserve.
If you have suffered a work-related injury or illness, Barsoum Law can and will help. We have represented thousands of injured workers throughout California the past 25 years. Contact us today at 877-299-1555 or info@barsoumlaw.comto schedule a consultation with a member of our team.
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