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Jandreau v. Shaw's Supermarkets11/25/2003
rmed the hearing officer's finding that the termination was not related substantially and significantly to the employee's exercise of his rights under the Act, but was based on bona fide employment considerations. Id. 15, 820 A.2d at 582. We rejected the employee's assertion that it is discrimination to terminate an employee on the basis of work restrictions that are the result of a work-related injury, stating: " hat interpretation would make any employment action due to a work restriction arising from a work-related injury a prohibited discrimination." Id. 13, 820 A.2d at 582.
The facts in this case fall squarely within the rationale of Laskey and Delano, and are distinguishable from Lindsay. Unlike the employee in Lindsay, who was physically capable of returning to work after his injury, Jandreau has consistently maintained that she cannot return to her pre-injury employment, nor can she perform the alternative work that the employer offered to her. Given the nature of her injury, the six-month time period mandated in Shaw's absenteeism policy was a reasonable amount of time for Shaw's to make a nondiscriminatory employment decision to terminate Jandreau based on her physical incapacity to return to work. Neither the Act nor our decisions require an employer to keep an employee on the books indefinitely when the employee can no longer meet the requirements of a job. Accordingly, we conclude that the decision to terminate Jandreau was not discrimination prohibited by section 353 because it was based on legitimate employment considerations directly bearing on the employee's physical ability to return to work.
B. Employer's Obligation to Accommodate an Employee's Work Restrictions
Relying on 39-A M.R.S.A. § 218 (2001), Jandreau contends that although she cannot return to her pre-injury job and cannot perform the alternative job that was offered to her, Shaw's has a duty to take greater steps to accommodate her work restrictions and return her to work. Indeed, section 218 establishes an employer's obligation under certain circumstances to reinstate and make reasonable accommodations for the physical condition of an injured employee.
However, the protections of section 218 do not automatically apply whenever there is a work-related injury, but are invoked only " pon petition of an injured employee." 39-A M.R.S.A. § 218. Jandreau's view that an employer must, in effect, honor the requirements of section 218 in every workers' compensation case, even when the employee has not filed a petition for reinstatement, is contrary to the plain language of the statute, and we have previously rejected this interpretation. Dahms v. Osteopathic Hosp. of Me., 2001 ME 145, 9 n.3, 782 A.2d 774, 777; Dufour v. Internal Med. Assocs., 1998 ME 169, 7 n.4, 713 A.2d 339, 341; Thompson v. Claw Island Foods, 1998 ME 101, 4-6, 713 A.2d 316, 317-18.
In the absence of a petition requesting reinstatement, employers are encouraged by the Act to accommodate work-related injuries and return employees to work, but are not required to do so. We decline Jandreau's invitation to read into the anti-discrimination statute a requirement that the employer must create light-duty employment for an employee in the absence of a petition by the employee for reinstatement pursuant to section 218. Before the strict reciprocal rights and responsibilities of section 218 are imposed, the employee must first make a positive assertion of a willingness to return to work by filing a petition seeking reinstatement. Jandreau has not filed such a petition.
III. CONCLUSION
Shaw's employment decision to terminate Jandreau was nondiscriminatory because it was based on
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