Donald Trump's TV series has everyone joking about firing or being fired, although for anyone who has ever been on either end of the equation - as the manager who fires, or as the employee who is fired - it is rarely a joking matter.
Some would make the case that in today's litigious society, most companies don't 'fire' employees outright anymore, fearing a charge of discrimination or wrongful termination. It does seem as though downsizing, outsourcing, re-engineering, plant closings, mergers, and a host of other euphemistic group actions have all but replaced the plain vanilla one-to-one termination, at least for large companies. Nevertheless, when there's a continuing employee performance issue, terminating employment is sometimes the only course of action. And, in some instances, an employer may even be sued for not terminating an employee, such as when that employee poses a danger to other employees.
What about firing an employee who is out on leave for workers compensation? That's a question we often get. In these cases, we will often hear a long litany of complaints about the employee, sometimes going back years. From the employer's perspective, the workers comp claim is often viewed as the final straw in a continuing series of problems with that particular employee; at other times, it simply may appear to be a convenient, neat way to resolve an ongoing problem.
Firing an employee while he or she is out on workers compensation disability leave is almost always a bad idea. For one thing, many states have laws that prohibit retaliatory firings for workers who file claims. Even if this were not the case, it's not a good idea to use workers comp as a tool to resolve human resource issues.
There may indeed be some instances where termination would not violate the law, such as in cases of business necessity. In an article entitled The Problem with Firing an Employee on Workers’ Compensation Leave, author Sharyn Alcaraz suggests that (in California) the following reasons may be legitimate:
"(1) the employer is severely shorthanded, other employees could not cover the work, and the employer could not replace the worker without expensive training of others; (2) violations of important company policies (e.g., drinking on the job); (3) chronic absenteeism and failures to report to work or call in; (4) failure to keep employer advised of condition and date of anticipated return to work; (5) the employee’s substandard work performance; (6) the employee was unable to do the work (or any substitute work) at the company due to the disability. As a practical matter, an employer must establish that it had good cause to terminate an employee after learning about a workplace injury (even for at-will employees)."
Note that these reasons would generally be valid for any employee under such a set of circumstances, and are not in reaction to past performance issues. When there is a history of performance issues with an employee, we would suggest that these issues be dealt with separately. We recommend that employers treat the employee in question the same way they would any other injured employee - providing excellent medical care, staying in communication through the recovery period, and helping the worker to recuperate and return to work as soon as feasible. When back on the job, the employer can address the performance issues.
All too often in these cases, the performance issues had not been adequately addressed in the past, and workers comp is seen as a way to sweep everything under the rug. Managers should deal with performance issues as they occur, and except in gross violations of company policy that dictate immediate dismissal, should use a progressive disciplinary process that allows the employee to understand and address problem areas. This is both the most fair and the most effective way to handle problems.
Why isn't this done consistently? Often, managers and supervisors are promoted to their positions with little in the way of training in the art and skills of being a manager. New managers should be taught how to supervise, coach, train, give positive and negative feedback, keep written records, and enforce company policies. It's critical to help managers and supervisors learn how to take disciplinary action in a fair, impersonal, and consistent way. Training in this area will not only help protect you, the employer, from litigation, it will help foster better manager-employee relations and a more productive work environment for all.
The Small Business Blog posted an article, How to Fire Employees, that discusses the issue of termination. At the end of the article, there are some excellent links to a variety of resources - it's a good tool kit on the topic of termination when remedial alternatives don't work.