By Carrie Mason-Draffen
DEAR CARRIE: I have a question about a worker who is out on a workers’ compensation claim. He worked as a seasonal employee and will be out about six months. If he is not able to come back to work before the new season starts, can the employer fill the position right away, and is the employer obligated to hire that employee again? — Employer’s Rights
DEAR DOESN’T: For answers, I turned to an attorney who primarily represents employers, Christine Malafi, a partner at Campolo, Middleton & McCormick in Ronkonkoma. Based on the facts you presented, she said the employer wouldn’t have to hold the job open.
“An employer does not have keep a position vacant because a seasonal worker is out on a workers’ compensation claim, and the employer can hire someone else to fill the position for the season,” Malafi said.
But the timing can be tricky.
“It is important to remember, however, that an employer cannot fire an employee, seasonal or not, for filing a workers’ compensation claim,” Malafi said. “An employer subjects itself to discrimination claims if it fires an employee for filing a workers’ compensation claim.”
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