Five Keys to Return to Work in Minnesota Workers Compensation

Introduction/Summary of Employers’ Obligations

Obligations of employers in Minnesota regarding employees returning to work following workplace injuries are not particularly restrictive, but careful employers need to be aware of certain limitations. There are also several common mistaken assumptions made by Minnesota employers on this issue. Employers need to be mindful of the actual requirements under the law, so they may fairly comply with them and not inadvertently take actions that may create significant legal exposure for employers.

In general, there is no absolute right under Minnesota’s workers’ compensation law (or any other law) for an injured employee either to be provided with “light duty” work or to be eventually reinstated/rehired. Minnesota law does, however, expressly prohibit employers from discriminating or retaliating against an employee who has suffered an on-the-job injury or filed a claim for workers’ compensation benefits. In order to not run afoul of that restriction, employers should typically engage in work availability analyses for such workers similar to those engaged in for purposes of analyzing possible “reasonable accommodations” requested by employees under the Americans with Disabilities Act (“ADA”). Best practices for employers in this area also include being routinely aware of the actual medical restrictions for injured employees as issued by their treating physician.

What the Law Says

1. Prohibition on Discrimination/Retaliation

The Minnesota workers’ compensation statute includes a provision (Minnesota Statutes section 176.82) that makes it unlawful to either refuse to offer continued employment or to re-employ an employee because of the fact that the employee pursued a workers’ compensation claim. This is an anti-retaliation provision and did not create guaranteed, continuing employment for injured workers. This part of the statute specifically prohibits employers from refusing to offer continued employment when employment “is available within the employee’s physical limitations.” The statute also makes it unlawful to discharge or threaten to discharge employees because they sought workers’ compensation benefits.

Claims by injured employees for violations of this part of the Minnesota workers’ compensation statute are resolved through the state court system – not through the workers’ compensation system. Employers’ exposure for such claims can be significant, because the law allows an employee who successfully pursues such a claim to recover up to $15,000 in lost wages (which is not covered by insurance), plus attorney’s fees and limited punitive damages. (The provision regarding the wrongful failure to offer continued employment or to re-hire is not applicable to employers with 15 or fewer employees.)

The good news for employers is this provision of the Minnesota workers’ compensation statute specifically allows an employer to assert as a defense that it had legitimate business reasons (“reasonable cause”) for either terminating an injured employee’s job, or failing to rehire an employee seeking a return to work following an injury. In order to be successful under this defense, an employer needs to be able to articulate (and be prepared to prove at trial, if necessary) that the failure to continue to employ the worker was for a legitimate business reason and not in retaliation for the assertion of workers’ compensation rights by the employee. Legitimate business reasons typically include the unavailability of any job positions fitting within an injured employee’s physical limitations (as specified in written medical restrictions) and the lack of any open positions for which an employee seeking to return to work is qualified and physically able to perform.

Employers are, however, required to make reasonable efforts to find acceptable positions for injured workers, including considering and making modifications to the employee’s pre-injury job duties, including both temporary and possibly permanent changes, when determining whether suitable employment opportunities exist for the injured employee.

The analysis an employer is required to undertake and the ultimate burden that it is obligated to tolerate are essentially identical to the “reasonable accommodation” requirements imposed on employers under the ADA. The key factors to consider are how significant the necessary job modifications would impact the core duties of an employee’s job, any expense that those modifications would require an employer to incur, and the administrative or other difficulties that may be caused by having to reassign (even on a temporary basis) some of the job duties to other co-workers.

2. Return to Work Via “Light Duty”

“Light duty” work is typically thought of as the creation of a new, temporary, position for an injured employee, as opposed to modifications to existing job duties. In Minnesota, there is no absolute right of an employee to be provided with “light duty” work when recovering from an on-the-job injury. Indeed, the phrase “light duty” appears nowhere within Minnesota’s voluminous workers’ compensation statute. Be that as it may, both employees and employers commonly – and mistakenly – assume there is such a right. Although an employer is certainly allowed to create a light duty position for an injured worker, employers are not required to do so under Minnesota law. If an employer chooses to offer a light duty position (at the same pay rate as the regular position) and the employee turns down a suitable job offer, the employer may cut off workers’ compensation wage replacement benefits.

That being said, Minnesota employers do have the legal obligation to entertain the possibility of making some modifications to an injured worker’s normal job duties (as discussed above). Nevertheless, employees do not have the right to, in essence, create their own job by demanding work of his or her choosing. Workers’ compensation insurers (and their third-party administrators) will often urge an employer to consider placement of an injured worker in a light duty position, in order to avoid having to pay workers’ compensation wage loss replacement benefits. As discussed below, how an employer chooses to handle such suggestions is really a business decision and not one driven by any legal requirements.

3. Leaves of Absence

In Minnesota, there is no such thing as a “workers’ compensation leave of absence.” An injured employee is either able to return to work, with or without reasonable job modifications, or the employee is unable to return to work. If the employee is unable to return to work on a temporary basis, the employee is then eligible for wage loss replacement benefits (referred to as “temporary total disability” benefits). Although there are specific time limitations that apply to the eligibility for such benefits, the injured employee does not have any other right to be provided with a leave of absence under Minnesota workers’ compensation law. (If, however, the injury at issue also qualifies under the ADA or the FMLA, an employer is required to analyze the possibility of leave of absence rights under those laws.) Although it is not uncommon for a Minnesota employer to consider out-of-work employees who are recovering from work-place injuries to be on workers’ compensation leaves of absence, the better approach is often to terminate the job position if the employee is unable to return to work, without holding the job open, and to then consider that person for possible re-hire at the point in time when the employee asserts that he/she is able to return to work.

4. Reinstatement/Rehiring

In Minnesota, injured employees do not have any absolute right to be reinstated into their pre-injury job, nor rehired into any position. As such, Minnesota does not recognize any “bumping rights” for injured employees. Employers do, of course, need to be mindful of the anti-retaliation provisions contained within Minnesota’s workers’ compensation law, as discussed above. As long as an employer complies with that provision of the statute, no other re-hiring or reinstatement rules apply. The bottom line here is that an injured employee who presents himself/herself as being ready to return to work must be able to establish they are qualified (with or without reasonable accommodations) for an existing and open job position. As a final note, employers with unionize work forces must, of course, be mindful of any bumping/reinstatement rights that are created under any applicable bargaining agreement.

5. Other Considerations for Employers

There are two other pragmatic points for employers when dealing with return-to-work issues. The first is the acknowledgement that an employer may face a significant financial impact even if it is not legally required to reemploy an injured employee, because that employee will then likely be in line to receive significant workers’ compensation benefits (wage loss replacement benefits) during a period of time when the employee remains unemployed. The second consideration is the “no good deed goes unpunished” phenomenon, meaning that if an employer is particularly charitable towards an employee and is willing to tolerate significant job modifications (or create an entirely new, light duty, position) and accompanying burden – above and beyond what is required under the law – the employer needs to be prepared to make the same concessions for other workers injured in the future.

The most significant benefits of adopting a liberal use of the creation of light duty positions include: (1) doing so may increase the likelihood that the employee will ultimately be able to return to active and productive work for the employer; and (2) using such an approach will hold down total workers’ compensation benefits paid and thus control the insurance premiums to be paid by the employer.

Significant disadvantages to a liberal – and voluntary – use of light duty positions include: (1) it may create a standard to be applied to the employer (in effect a “raising of the bar”) when an employer is faced in the future with fights over the legitimacy of the “undue hardship” justification for failing to continue to employ (or re-employ) an injured worker; (2) this approach has the tendency to create unreasonable expectations by employees as to the appropriate duration of the light duty position; and (3) this approach may negatively affect employee morale concerning other employees who perceive they are working significantly harder in exchange for the same pay.

The bottom line is that employers must be careful to go through a meaningful and very specific assessment when making decisions about whether and how to allow an injured employee to return to work.

Dean LeDoux is a principal at Gray Plant Mooty in the firm’s Employment Law practice group. He represents labor and employment clients in a variety of jurisdictions, including federal and state courts, and before the National Labor Relations Board, the Equal Employment Opportunity Commission, the Minnesota Department of Human Rights, and other such agencies. Contact Dean at 612-632-3233 or [email protected] . www.gpmlaw.com Offices in Minnesota and Washington, D.C.