Can I terminate an employee who is on workers’ comp?

 

 

Let’s consider a situation in which an employee fails to adhere to the company’s rules or underachieves on a serious level. Even though you are trying to correct such behavior by disciplinary action, you are thinking of firing them; however, they have a workers’ compensation claim open. The question is whether this assertion protects them from termination.

The answer isn’t simple because it depends on the state your business is in, the cause of that disciplinary action or termination and the specifics of the workers’ compensation claim. In most cases, the mere filing of a workers’ compensation claim is not an immunity against the disciplining or termination of behavior. Yet, the termination move in such types of situations is rather dangerous. These are the key thoughts to think about before making any decision.

 

Explanation of an Open Workers' Compensation Claim

An open claim means:

·         The worker has lodged a workers’ compensation claim.

·         They are still getting benefits, being rehabilitated or not fully recovered.

·         The claim is live in the workers’ compensation system.

 

Claims of such nature may remain open for a considerable duration, which will depend on the severity of the injury or illness and the treatments needed.

What scenario can an employer use to fire an employee with a workers’ compensation claim?

Laws mostly prevent employers from firing or disciplining an employee just because they filed a workers’ compensation claim. Nevertheless, there is rarely a strict prohibition on termination for valid reasons, considering that some claims can take a long time to resolve.

·         Employees are incapacitated after getting permanent restrictions.

·         Layoffs have to be all over the company.

·         The employee had a history of documented performance issues prior to the injury or illness.

 

Even though these explanations are usually agreed upon, it is important for employers to take care not to appear retaliatory.

 

Navigating the Risks

Dismissal of a worker with a current workers’ compensation claim should be done for genuine reasons and it should be well thought out to avoid the possible appearance of retaliation. A clear comprehension of open-claims specifics and the context where termination is justified may be useful for employers to deal with such complex issues.

What does retaliation mean?

Retaliation is a term used to define a situation when the employer unfairly punishes the employee who has made a workers’ compensation claim.

- Job reassignment, although they can perform their original job.

- Rotating their working hours.

- Demoting them

- Shortening their working hours.

- Firing them

If employers are found to be retaliating, they may have severe repercussions. It is a good idea to consult an employment law attorney if you are going to discipline or terminate an employee with a current worker’s compensation claim. However, even before that, the employer should have enough evidence that their actions are appropriate.

 

What is the core of record-keeping?

Maintaining elaborate documentation on all cases of misbehavior or performance issues comes to your rescue when you need to terminate an employee with an existing workers’ compensation claim.

- Transparent guidelines and job expectations

- Writ rules for discipline policies.

- Records of any instances where an employee had a poor performance or misconduct, and what was done to rectify it.

- A practice of addressing these concerns promptly and consistently.

 

It is very crucial to tackle issues as they arise. If you wait until after an employee has filed for workers’ compensation, it may appear that you are retaliating, even if the problems started before the claim. If an employee starts to develop problems while their compensation claim is still being investigated, you should not ignore these problems. Just act the way you normally do and ensure to take everything down.

However, good documentation can decrease the level of your risk when you are involved in a legal situation but it will not entirely eliminate all the risks, and the employee may take you to court.

In summary

Employers have to strike the right balance between the legal duties and the right time to discipline or terminate an employee. Proper documentation and justification are of paramount significance as installation is crucial and is eventually beneficial.