April 6, 2004

You're fired! Should you terminate an employee who is on workers compensation?

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.



Lynch Ryan: If I am on workers comp and the company I am working for is trying to fire me for stopping and using the bathroom and checking on safety boots while in route to picking up material - Do they have grounds to fire me if I used that time as my break and also I HAD TO USE THE BATHROOM. They have been looking for a reason to fire me and a co-worker turned me in for stopping at this boot place. I am a union member and we are allotted time to take breaks and I have been stopping to pee while doing this job since year 2000. All of a sudden they are going to go on heresay from this co-worker's lies and are talking about firing me. I am also on workers comp right now for a shoulder problem.

Hi Lori –

We don't know whether your employee can fire you or not. Your employer has to follow their established company policies, and has to follow them consistently with every employee. They must also comply with any employment and workers compensation laws. These laws are different in each state.

If you feel your rights are being violated, the first step is to check with any internal resources that are available to you. Your human resources department or your union may have grievance procedures that may help you to resolve matters.

If you are terminated, and you feel your rights were violated, you may want to consult an attorney to see what recourse is available to you.

As for your workers comp, it is hard to say if these events are or would be considered related. Most states have laws that prohibit employers from firing somebody in retaliation for filing a workers comp claim. That may or may not be pertinent in your specific situation. Again, this may be an area for legal advice. Most state workers comp bureaus have informational resources that explain employee rights and responsibilities. You can find links to all state workers comp Bureaus here at All 50 States Workers Comp Agencies or Workerscompensation.com.

We advocate that both employees and employers alike exhaust the least confrontational methods to resolve any disputes first. Sometimes, just talking over an issue with a human resources person can help to resolve issues before they become problems.

Good luck, Lori - we hope you and your employer can resolve the problem.


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This page contains a single entry by Julie Ferguson published on April 6, 2004 10:32 PM.

Can "talking the talk" hurt your workers compensation program? was the previous entry in this blog.

Trading tax cuts for health care? is the next entry in this blog.

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