Injured workers who are looking to return to work with work restrictions after an extended time of healing from an injury face some problems in returning to work. In many cases the injured worker has been off work well beyond any time covered by the Family Medical Leave Act, the Americans with Disabilities Act and or any leave of absence policy, so they are unable to return to their old job assuming they could do their old job.
Workers in this situation often ask “Who is going to hire me with restrictions?” It’s a legitimate question. Here a few do’s and don’ts from my experience as a lawyer representing injured workers.
Do: Work with vocational rehabilitation
Nebraska offers vocational rehabilitation, VR for short, as part of our workers’ compensation act. Sometimes vocational rehabilitation can mean an injured worker gets paid their so-called temporary total disability rate while they go to school. More often this means a vocational counselor helps an injured worker look for work while they are receiving those benefits. VR is the Rodney Dangerfield of workers’ compensation benefits – it often gets no respect – but it can be very helpful for injured workers. It’s also not a benefit that an insurance company will often voluntarily offer to an injured worker like medical benefits or temporary disability pay.
Nebraska also offers vocational rehabilitation through our state department of education. That fact confuses a lot of my clients when I talk about VR through workers’ compensation. But if an injured worker has settled their workers’ compensation case or is fighting their workers’ compensation case, they can use VR through the state department of education to help return to work
Don’t: Assume no one will hire you
Disability discrimination is real. That’s why there is the Americans with Disabilities Act and parallel state laws. Under the ADA, it is illegal for an employer to discriminate against a qualified employee with a disability who can do a job with or without reasonable accommodations.
What that does that last sentence mean?. In plain terms, this means that so long as you meet most of the qualifications of the job, an employer or perspective employer should work with you to make minor tweaks to a job. Sometimes this means using a stool to avoid standing. Sometimes this means using a cart to avoid heavy carrying or lifting.
In practical terms, Nebraska employers claim there is a shortage of workers. I think business interests overstate this concern for political reasons, but as the job market has improved employers seems more willing to take chances on employees.
Don’t: Fail to disclose your restrictions or injury if asked by a new employer post-hire
In order for an employee to accommodate restrictions from an old injury, they need to know about the restrictions. While an employer can’t ask you about a disability pre-hire, they can ask about a disability post-hire so long if it is job related. The “Who is going to hire me with restrictions” line can get a worker into trouble if they don’t disclose they have some restrictions to certain body parts. Again, an employer needs to work with you to some extent on accommodating an old injury,
Failing to disclose an old injury can also make it more difficult to make a workers’ compensation claim if an injury with a new employer worsens an old injury. It can also be grounds to deny a workers’ compensation claim entirely. Failing to disclose an old injury can potentially be grounds for termination for dishonesty on employment application.
Don’t: Tell anyone who isn’t your lawyer or a family member that “No one is going to hire me with restrictions.”
Going back to the “Who’s going to hire me with restrictions?” It’s a legitimate question. But if an injured worker is still fighting a workers’ compensation claim, that statement said to the wrong person can hurt a claim.
Who is the wrong person? Anyone who isn’t a family member or your lawyer.
When a vocational rehabilitation counselor, doctor, insurance company lawyer, insurance adjuster or mediator hears “Who is going to hire me with restrictions?” they tend to think. “This person doesn’t want to work” and or “This person isn’t hurt as bad as they think they are.”
Why do they think that way? If you work on the insurance-side of workers’ compensation for an extended length of time, I think you tend to perceive cases from that perspective. Lawyers and doctors and other professionals look at work differently. Many professionals tend to live to work rather than work to live. I believe that professional class people glamorize blue collar labor and tend to get nostalgic about blue collar or service jobs they did when they were younger. Professional class people also tend to consume media geared towards professional class people that tends to cover the workplace from the perspective of business.
But regardless of why professionals involved in workers’ compensation case think this way, those professionals have a lot of influence over the value of an injured workers’ compensation claim. Injured workers need to be careful about how they communicate with these professionals.