Workers’ Comp: Return to Work — Shift Changes & Child Care

By Martin & Jones on September 2, 2011

Often when an injured worker returns to the job after a period of disability, the employer will offer him or her a position on a shift different from the one worked before the injury. Sometimes, this shift change can cause child care problems for the injured worker’s family, particularly for single parents. Can an injured worker rely on child care concerns to turn down a position offered on a different shift with forfeiting weekly disability benefits?

Until recently, the answer was probably yes. In the case of Cialino v. Wal-Mart, the Court of Appeals determined that an injured worker was justified in turning down a light-duty job on a different shift because of her child care needs. Before her injury, Ms. Cialino had worked the night shift, while her husband who worked during the day cared for their children. Because no light-duty position was available at night, Wal-Mart required her to take a daytime shift, during which time Ms. Cialino had no one to care for her children. Because of this problem, she turned down the job offer.

Wal-Mart took the position that Ms. Cialino was not entitled to disability benefits because she refused a suitable position. The Court of Appeals held that Wal-Mart did not offer a suitable position, which strongly implies that Ms. Cialino’s child care concerns were a legitimate reason for not returning to the daytime position.

Recent changes to North Carolina’s Workers’ Compensation Act – pushed by legislators concerned more about helping wealthy corporations and insurance companies that our state’s workers – cast doubt on whether the decision in Cialino is still good law. The amendments alter the definition of what constitutes ‘suitable employment’ when the injured is still treating for his or her injuries. Under the new definition, a position is suitable if it is ‘within the employee’s work restrictions, including rehabilitative or other noncompetitive employment with the employer of injury approved by the employee’s authorized health care provider.’ Session Law 2011-287.

Under the new definition, it appears that the only consideration is whether the offered position is within the physical restrictions of the injured employee. An argument can be made that concerns like child care can no longer be considered by courts. As such, parents who decline an offer to return to work because of childcare concerns may be at risk of losing their weekly disability benefits.

Fortunately, it’s not completely clear from the new amendments that child care cannot be considered, and at some point, our courts will be faced with this question again. It’s possible, however, that workers in North Carolina will be faced with difficult choices when their employers offer them a position in a shift that creates problems with childcare.