wrongful termination

busman

If an employee is off on worker's comp. can he be terminated? He has been off on comp for over a year and I need the position filled. Can I terminate him?

Don D

Not knowing anything about your state's work comp laws, I'll say that, yes, in my state, a comp employee can be terminated. Certainly not for that reason alone; however, assuming he's been through FMLA (after a year off he would have) and assuming he's not an ADA defined 'Qualified Individual With A Disability' who can get to work and perform the job with or without accomodation, we would terminate. If he could have been certified by his doctor as reaching MMI by now and returned to work on some basis, I assume that would have already happened. If he's a malingerer and riding the system, which is a popular ride these days, I'd terminate. There's several things to consider, most of which are listed above in my post. FMLA is history for him. ADA may be a consideration depending on what you've sent him in the way of expectations and what happens if he doesn't comply. Some states even REQUIRE restricted duty return to work. Does yours? And, there's always the disclaimer most people post: "Check with your attorney".

Down_the_Middle

busman:
The short answer is YES, as long as the basis for the termination is not related to their w/comp status. Many states prohibit any form of retaliation against employees filing or receiving w/comp benefits, but as long as the need to terminate is reasonable and based on business necessity, you s/b ok.

Don D's advice is certainly valid, so your state will provide guidance for what you should NOT do. Your org apparently does not have a standard practice of terminating employees who are unable to work after a defined period of time----6, 9, or 12 mos. This might be something to consider in the future and as long as you apply it consistently and universally, it's not likely to be successfully challenged. It's unclear whether this particular situation is your 1st or 101st example of discharging someone on w/c. Assuming you don't do this everyday, certainly inform the employee ahead of time and offer them the opportunity to return (if possible)......... Sending the person a letter advising them of their termination (when you've had no recent contact with them) is certain to make them defensive and give the appearance of retaliation on your part. Your question is likely much more complex than you've mentioned, so Don's advice about consulting a comp attorney is very good advice.