2 AAC 07.228 - Preferential rights of injured state employees

(a) If a person is not appointed under 2 AAC 07.226 or 2 AAC 07.227, a person with preferential rights because of qualification under AS 39.25.158 as an injured state employee may be appointed.

(b) A request for a workers' compensation injury preference must be filed within 30 calendar days after the date the injured employee is released to full or modified employment by the injured employee's treating physician; the request for workers' compensation preference must

(1) be in writing; and

(2) be accompanied by a copy of the treating physician's release.

(c) Within 90 days of release to employment, the injured employee shall submit to the director

(1) a complete application for state employment under 2 AAC 07.086, specifying the geographic location where the injured employee will accept employment, and indicating whether the injured employee is interested in full-time, seasonal, or part-time employment;

(2) a physical capacities evaluation form completed and signed by the injured employee's treating physician; and

(3) other material that the director may require to evaluate the request made under this subsection.

(d) The director shall forward the materials submitted by the injured employee, along with a copy of the description of the position held by the employee at the time of injury, to the director of the division of vocational rehabilitation or to the workers' compensation reemployment benefits administrator for certification. If the injured employee is certified, the director will endeavor to place the employee in a position in accordance with AS 39.25.158.

(e) Nothing in this section prohibits an employee from applying for benefits for which the employee is qualified under AS 23.30 (Alaska Workers' Compensation Act).

(f) An injured employee may exercise the workers' compensation injury preference under this section only

(1) once for each injury in state employment;

(2) for a position for which the injured employee meets the minimum qualifications and is able to perform the essential functions; and

(3) for a position that provides a comparable wage, unless the injured employee agrees in writing to accept a position at a lower base pay rate.

(g) At any point in the placement process, the employee may agree in writing to accept a wage lower than one comparable to the employee's former position.

(h) If an injured employee completes retraining under AS 23.30.041, the injured employee may apply under provisions established by the director for vacancies for which the injured employee was retrained, is qualified, and is able to perform the essential functions.

(i) If the injured employee is not placed under this section, the director shall permit the appointing authority to fill the position under provisions of 2 AAC 07.041 - 2 AAC 07.113.

(j) A workers' compensation injury preference expires if the injured employee refuses a job offer under this section, or is placed in a position under this section, or accepts a probationary appointment through competition or non-preferential rights for a position at a comparable wage. If an injured employee receives a written offer of employment under this section and does not accept the offer within 10 calendar days of the date the offer is received, the offer is considered refused.

(k) The appointing authority shall notify any employee subsequently employed in a position vacated by an injured employee of the injured employee's rights under AS 39.25.158(c).

(l) In this section,

(1) "comparable wage" means a wage equal to at least 75 percent of the gross hourly rate of pay earned by the injured employee at the time of the injury; all comparable wage calculations are made using the geographic salary schedule applicable to the location of the position to which the injured employee is seeking to return;

(2) "injured employee" means a permanent, provisional or probationary employee in the classified service who suffers an injury or disease as defined by AS 23.30.395 that is covered by a compensable workers' compensation claim, and resulted in termination of employment due to the inability to perform the essential duties of the employee's position;

(3) "position" means a position in the classified service other than an emergency or nonpermanent position.

Notes

2 AAC 07.228

Eff. 4/23/2004, Register 175

Even though the adoption of 2 AAC 07.228 was effective 4/23/2004, it was not published until Register 175, Oct. 2005.

Authority:AS 39.25.070

AS 39.25.140

AS 39.25.150

AS 39.25.158