Termination and Workers' Compensation

hswalker · February 2003

We have an employee who was injured on the job when he tripped getting out of a company van and broke several bones in his foot. After the accident, we learned that this employee had done a number of things, any of which would constitute reason for immediate termination, but none of which were documented. Now that the employee is on WC leave (and apparently heading for surgery on the injured foot) we are unsure how to handle the situation. There is no question that the employee will be terminated - the question is WHEN?

We're trying to determine the course of action that poses the least risk from a "wrongful termination" claim.

Any thoughts are appreciated. :-S

cebudragonlady · February 2003

Suggestion:
1. Have the supervisors write down in detail the violations that this employee
committed before his/her injury, each signing with the current date.
2. When the employee returns, sit down with him/her and go over what the
supervisors wrote. Have a witness present. Give him a warning, that future
similar violations will result in termination.
In this way, the employee is given a chance unrelated to the WC claim.

Chari

Don D · February 2003

[font size="1" color="#FF0000"]LAST EDITED ON 02-07-03 AT 04:47PM (CST)[/font][p]The fact that he is now out on WC does not preclude his termination. Proceed with your investigation, documenting along the way. If the evidence you have would result in termination were it not for the WC, you may still terminate. What you have to avoid is any appearance of termination in retaliation for WC and that is likely what you will have to disprove if he asserts that as the reason he was terminated. Unless your state law states otherwise, this is very similar to termination of someone on FMLA if your investigation was already underway or his job was already in jeopardy of elimination. In that case, as in the case of WC, if the termination would have taken place had it not been for the event of FMLA, there is no requirement to not terminate. Neither WC nor FMLA protects or insulates an employee from termination in those scenarios. If that were the case, any employee who saw termination looming might manage to fall down the stairs to protect his job. Under normal circumstances, FMLA is a "Job Protection Statute" whereas Workers' Compensation is not.

Even if your reasoned determination is to terminate, that will not jeopardize his comp coverage as his medicals, including surgery will still be your obligation or that of the carrier.

hswalker · February 2003

Wow - this is the first time I have posted in the forum and I'm amazed - two responses in the first 30 minutes after my post, and both good suggestions!

Thank you so much for your input - I appreciate it more than you know.

Gillian · February 2003

Both posts are correct. I think that the only difference revolves around the lack of documentation about whatever the offenses are. If, without documentation, you would have terminated the employee anyway because of the severity of the offenses, then go with the termination response. If, without the documentation, you would normally not terminate because of its absense and give a last chance option, then have the suggested meeting.

Theresa Gegen TX · February 2003

Hire a good labor lawyer immediately to help you decide how to address this issue!! Worker's comp retaliation lawsuits are VERY dangerous.

sandra_d · February 2003

I don't know if you are concerned at all about this employee's lost time wages, nor do I know what the laws in your state are, but in MN we'd be paying him (via work comp lost wages) until he starts work somewhere else and earns at least as much as he was with us. My guess is that he will take his time finding other employment while collecting lost wages via work comp ... this should add up to a nice sum of money to be added to your claims experience. If this matters at all, then maybe give him a strong disciplinary warning when he returns to work that leads to termination if happens again. Of course, some things that employees do are so outrageous that you just have to terminate regardless of the financial consequences to your company ... only you and company big-wigs can make that determination.

System · February 2003

Virginia law prohibits discharging an employee BECAUSE he filed a workers compensation claim, but does not prohibit an employer from discharging an employee WHILE he or she is on workers compensation leave. Whether or not this proposed discharge would be viewed as retaliatory (i.e., BECAUSE he filed a workers comp claim) would depend upon a couple of factors: (a) what you had done with other employees who had been found to have engaged in the same kind of misconduct that you have recently discovered (if lesser discipline was imposed upon them, discharge here will appear retaliatory); (b) if the misconduct really wasn't and could not have been discovered earlier (if it looks like you knew about this, but didn't take any action until after the workers comp injury, it is more suspect); and (c) the absence of documentation (if the absence of documentation at your firm usually means that no discipline is contemplated, one might argue that the after-the-fact decision to act on the misconduct is suspect). There is a lot of potential for trouble here, and an employee discharged while on workers comp will do two things: 1) stretch out the injury for as long as possible, and 2) use the time off to consult with counsel. Your firm, too, should consider doing #2 before acting.
PS: Watch out for your workers comp carrier settling with this individual. The carrier is watching out for its liability--not yours.

Termination and Workers' Compensation

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