No sale: Recovery period rehire exception doesn’t apply to new positions

Wisconsin’s worker’s compensation statute requires employers, absent reasonable cause, to rehire employees who suffered a workplace injury. Normally, employees need to show they reapplied to their old position to make a valid claim under the statute.

An exception exists, however, where an employee doesn’t need to reapply if they were terminated during their recovery period. A recent Wisconsin Court of Appeals case decided if this exception applies when an employee, who was fired during the recovery period, alleges he wasn’t rehired to a different position with the same employer.

Primer on the statutes

Under section 102.35(3) of the Wisconsin statutes, an employer can’t terminate an employee (or refuse to rehire an employee) because of a workplace injury. If the employer does so, an employee can make a claim to recover up to one year’s worth of wages.

To make a valid claim under the statute, an employee need only show that they were employed, suffered a workplace injury, and were fired or not rehired after suffering the injury.

After the employee successfully shows these limited facts, the burden shifts to the employer to show it had reasonable cause, unrelated to the injury, to discharge the employee. Reasonable cause has been defined by courts as a reason that is “fair, just, or fit under the circumstances.” Even if termination is based only in part on a workplace injury, that is still a violation of section 102.35(3).