Is it legal for my employer to not allow me to come back to work after a workers comp injury?

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Is it legal for my employer to not allow me to come back to work after a workers comp injury?

I have been released to fully return to work, and the new owner (business sold while I was recovering) has decided that there is no room for me. He is claiming that it is because my husband works there (I hired him with the previous owner’s blessing), and he has an unwritten policy against that. Regardless of the fact that he has been telling me the whole way through my recovery to just take my time healing, and only come back when I am ready. He also claimed (in the phone conversation, as well as the letter I requested he send) that there is no work, yet he opened an office in another town.

Asked on October 28, 2010 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

1) If there is no job for *you,* given your experience, education, training, qualifications, and physical capacity or capability (though see below, (2)), the employer does not need to let you come back to work. It doesn't matter whether the company is expanding, staying the same, or shrinking, or how many other jobs there are--all that matters is, at present, there is a job you can do. If not, the employer does not need to create one for you.

2) If you have some residual disability that would affect your job performance, then if you can still do the job with some reasonable accomodation (e.g. a change in duties or hours; some assistive technology or a reconfiguration of the workplace), the employer must make those accomodations, but they must be reasonable--i.e. you still have to be able to do a valid job and the employer can't be expected to spend an unreasonable amount of money to let you do that job.

3) An employer is entitled to have a no spouses policy and to fire one of two spouses working with him. A new employer or business owner is not bound by what a previous owner had done or allowed.  A no spouses policy, if it's not a pretext (i.e. that it's real and applied consistently; if there are other spouses working there while the employer fires you, then it might be a pretext).

IF you can do a job that's there for you, and you think the no spouse policy is a pretext, and you think also that you are being retaliated against for being on worker's comp or discriminated against owing to a residual disability, you should discuss your situation with an employment attorney.


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