Can you fire while on WC

bbarrett

Can we fire someone who is just not working out but he is on WC?

LindaS

When you say, "just not working out" what does that mean? Is he not performing to standards, are there other documentable problems with the ee? While WC does not protect an employee from being terminated, you want to make darn sure you have documented reasons backing up the reason(s) for terminating the ee. In absence of documentation, I would hold off on the termination until he returns from WC. Deciding to terminate an employee while out on WC without documented backup could lead to alot of legal problems down the road.

Whatever

I agree with LindaS. Unless you have a lot of documentation, this could be interpreted as retaliation for filing a claim. Perceived reality has nothing to the facts.

Don D

In our state there is no such thing as workers' comp retaliation. The employee could be fired to answer your question, in this state. Whether or not you want to go there is another matter, as the others have said. If he has gone out on comp and is suddenly 'not working out' that looks a bit suspicious. If you had discipline in gear prior to his going out and he was well on his way to documented termination when he got hurt, then comp should be irrelevant to the process you had in motion.

Melinda Kane

I have an employee who is out on WC, used up her FMLA leave and is on COBRA.
We have not terminated her as yet but are in the process of doing so because we need to fill the position. The problems is, is that she just filed a claim because WC has dropped her and stated that he injury is not work related. My question is at this point if we terminate will this be viewed as retaliation for the claim? If someone could please respond I would appreciate it.

Don D

I don't know. What status do you consider her to be in at the moment? Why was she not terminated at the expiration of FMLA? Does your company have some 'entitlement' that allowed her to continue on the books after FMLA. If you do not have a safety net that she is resting in now, you should terminate her if you need to fill the position.

E Wart

I don't know how long you are talking about being out. (A few days, months or unknown.) I have learned that TX W/C is really strange and leans very much in the employee's favor. I would be very careful because of this (and it has nothing to do with whether the employee should be released or if you have any documentation. You may want ot wait until they return to work. However, you could contact the Board if you want to check it out from there.
E Wart

stilldazed

My organization had a food service worker about a year ago who was out of work for a couple of weeks after a work-related injury (broken finger). During the W/C investigation process, which happened to conclude during that two-week period, we discovered clear misrepresentation in the hiring process. The misrepresentation successfully disquised an extensive criminal history. Our organization is one that is strictly regulated in the area of criminal backgrounds. We sought legal counsel, who advised we could terminate, so we did for misrepresentation. Technically, it was the proper thing to do, and given the potential risks inherent in our line of work, it was good to be prompt. Realistically, it proved to be a costly decision. At the time of termination, the employee was certified temporary disability (believe it or not for the broken finger), was separated from those to whom we render care by virtue of the disability, and managed to find a physician who certified the temporary disability status for nearly nine additional months. After the termination date, there was more surgery for bone separation at the point of the break, extensive physical therapy, and lost wages until the employee was released to return to an active working status. The bottom line, because we never challenged compensability of the claim, we were responsible for all costs, and the certified restricted work status meant that lost wages were included in our liability. In hindsight, we probably could have waited the two weeks and terminated on the RTW date, after having evidence that the employee was released to work, which probably would have prevented the lost wages part of the issue at least. (There was a subsequent unemployment claim, and it was one of the few in which we have prevailed.) The morale is, consider all the options and potential consequences. By all means, do what is proper, but is termination necessary right now, or can it wait a few days? What is the risk of waiting? The potential benefit?

Don D

You, through your comp carrier, are still liable for all followup medical procedures and drugs, related to the work-related injury, no matter whether or when you terminate the ee. Comp is not like health insurance, in that it does not cease coverage upon termination.

stilldazed

We knew the liability part wouldn't change and didn't have a problem with that. The part we didn't expect was the extended liability for lost wages (approx. $10,000 for 9 months after the term date). In what can't be proven as such but appeared to be a retaliatory effort by the employee, there was a questionable "separation of the bones" after a medical examination revealed that the bones were healing properly. Objective medical findings documented that the separation could have occurred by reinjury or swelling. Because "swelling" was mentioned as a potential culprit, the other alternative was basically eliminated. The employee reported to the physician that there had been no reinjury, but the employee was on the honor system with no witnesses around most of the leave period. We sent a written notification during the leave period to advise the termination had occurred. We quickly received notice that there was legal representation from an attorney 800 miles away and notice from a physician that the leave period would not end as expected as the employee continued to be unable to perform duties of any position that required the use of hands. This employee, by the way, had also self referred out of the W/C network, but our carrier was reluctant (for fear of being found noncompliant with Florida W/C laws) to refuse the medical evidence that resulted.

Had we known ahead of time how the story would end, it's hard to say if we would have done anything differently because of the nature of the misrepresentation, but it did prove to be a costly decision and an excellent training event for folks (like me) who were new to HR and W/C.

Thanks to postings on this web page, others like it, and a never-ending stream of "adventures" on a daily basis, I'm still dazed sometimes but coming along quickly.