Section 39.25.158. Reemployment rights for injured state employees.

   (a) An injured employee is eligible for reemployment rights under this section if the employee requests to return to work for the state within 30 days after receipt of a release from a physician indicating that the employee is able to return to full or modified work.
   (b) After an employee requests to return to work, the reemployment benefits administrator of the division of workers' compensation or the director of vocational rehabilitation in the Department of Labor and Workforce Development shall review the request and certify that the employee is able to return to work under (c), (d), (e), or (f) of this section, or defer certification until the employee completes retraining under (f) of this section.
   (c) If the reemployment benefits administrator or the director of vocational rehabilitation certifies that the employee is able to perform the tasks assigned to the employee's former position, the agency shall reemploy the employee within 30 days after receipt of the certification unless the position no longer exists. If a permanent, probationary, or provisional employee is currently employed in the position, the agency shall cause a vacancy under the layoff provisions of AS 39.25.150(13).
   (d) If the employee is not eligible for reemployment under (c) of this section but is able to perform the essential functions of the position, then the agency shall reemploy the employee in the position after making a reasonable accommodation to the physical and mental limitations of the employee unless the position no longer exists. Reasonable accommodation may include imposing work restrictions on the tasks performed by the employee, making job or site modifications necessary to permit the employee to perform the tasks of the position, removing institutional and architectural barriers, and providing additional support services.
   (e) If the employee is not eligible for reemployment under (c) or (d) of this section and if the agency has a vacant position for which the employee is qualified that is comparable in wage to the position the employee previously held, then the agency shall offer the employee the position. If the employee is unable to perform the essential functions of a comparable position within the agency, then the employee is entitled to reemployment in a comparable position for which the employee is qualified with another agency if the position is vacant and the employee is able to perform the essential functions of that position.
   (f) If the agency and other agencies in the state are unable to reemploy the employee in a position at a wage comparable to the employee's previous wage, the employee may request reemployment at a lower wage or accept retraining under AS 23.30.041. After completing the training the employee may request reemployment in a position for which the employee has been retrained in the agency. If the agency cannot offer reemployment, the employee may request reemployment in a position for which the employee has been retrained with another agency.
   (g) An agency may refuse to reemploy or continue the employment of a former employee if reasonable accommodation imposes an undue hardship on the operation of the agency's program or if, after reasonable efforts at accommodation, the injured employee cannot perform the essential functions of the position in a manner that would not endanger the health or safety of
        (1) the employee because the job imposes an imminent and substantial degree of risk to the employee; or
        (2) others to a greater extent than if a nonhandicapped person performed the job.
   (h) Factors an agency may consider in determining undue hardship under (g) of this section include the current number of employees in the section or office, number and type of facilities, size of budget, nature and cost of the accommodation needed, and the type, composition, and structure of the work force.
   (i) Notwithstanding any other provision of law, if an injured employee requests reemployment under (e) or (f) of this section and if the employee is able to perform the essential functions of the position, the state may not hire another person for that position except an employee in layoff status for that job class.
   (j) A collective bargaining agreement under AS 23.40.070 - 23.40.260 may not include terms contrary to this section.
   (k) In this section,
        (1) "agency" includes a department, division, office, agency, board, commission, authority, or other organizational unit of the executive branch of state government;
        (2) "comparable wage" means a wage equivalent to at least the state minimum wage under AS 23.10.065 or 75 percent of the worker's gross hourly wage at the time of injury, whichever is greater;
        (3) "injured employee" or "employee" means a permanent, probationary, or provisional employee of an agency in the classified service whose injury is a compensable injury or condition under AS 23.30.

Authorities

23.40.075

Notes

Implemented As

2 AAC 07.228
2 AAC 07.230

References

2 AAC 07.228
2 AAC 07.230
AS 23.40.075 Items not subject to bargaining.

History

(Sec. 2 ch 86 SLA 1988; am Sec. 44 ch 58 SLA 1999)