The workers’ compensation doctor has released me to return to work with restrictions. Now my employer has created a job for me so I can sit at a desk and come back to work. Are they allowed to do that?
In the past, the answer was, NO. Now, after the 2011 changes in the law, if you are still under treatment, and your doctor feels that your temporary job is therapeutically beneficial for you, even if there was no such job before you were injured, and even if there is no such job available in the open job market, you will still have to do it.
Many employers have rehabilitation programs, sometimes known as “Temporary Alternate Duty” (TAD) programs. These programs are basically designed to get you into some type of job with the employer to accommodate your work restrictions, and are considered to be valid vocational rehabilitation programs under North Carolina law. Assuming your doctor has approved the modified duty that your employer has offered you, you could be charged with an unjustifiable refusal to engage in suitable employment and be cut off from all benefits if you refuse to engage in that program.
If you have reached maximum medical improvement (MMI), and your doctor has released you with permanent restrictions, then the job must be ‘suitable employment.’
Under the new laws passed in 2011, that “suitable” job would consist of any job that you are capable of performing considering your physical and mental limitations, vocational skills, education and experience, and whether it is located around a 50-mile radius of your residence. No one factor is considered exclusively in determining suitable employment.
Unfortunately, under the new changes to the law in 2011, there are no income requirements for any job offer. Even if it is minimum wage, it may still be considered “suitable employment” no matter what your income level was pre-injury.
That being said, if you took that job, you would be entitled to partial incapacity, or 2/3rds of the difference between your prior income and current income in the new job, for up to 500 weeks.
Now, you need to realize that this has nothing really to do with your rights in terms of employment law and whether you can be fired. They can fire you for just about anything, unless it has to do with discrimination based on Race, Religion, or Sex. This is only in regards to workers’ compensation and the issue of “suitable employment” and whether you have been offered “suitable employment” for the purposes of obtaining benefits under the Workers’ Compensation Act.
Beware that once you return to work in any capacity with your employer, the employer may still fire you if they say you engaged in misconduct of any kind. Of course, it is always in the employer’s interest and the workers’ compensation carrier’s interest to get you off the property after you’ve been injured. As an injured worker, you are an added risk to them. So beware that typically, they will be looking for reasons to fire you. They will make every attempt to irritate you and bait you into doing or saying something stupid that will get you fired.
Don’t fall for it.