The management of Workers’ Compensation claims comes with a number of challenges including verification that an injury occurred while on the job and evaluation of return-to-work accommodations. One specific challenge involves when an employer is considering firing an employee who has filed a comp claim. Most state Workers’ Compensation laws have penalties, fines and even jail time for wrongful termination. Therefore, employers must proceed with caution when considering letting go an employee with a comp claim. It’s imperative that the employee is not deemed to be terminated due to the Workers’ Comp claim.
Following are several tips to provide to employers to help minimize the risk of retaliation or wrongful termination claims, along with any potential criminal penalties as a result of terminating an employee who has filed a Workers' Compensation claim.
- Consult state statutes to ensure the business is covered by the statute. Most state Workers' Compensation laws cover employers who have very few employees, some as few as one.
- Review the company’s personnel policies and employee handbook. What are the company rules and policies for progressive discipline and termination? Is verbal counseling, written notice, or both required before terminating an employee? Do the policies identify as possible grounds for termination the conduct that the employer is considering under the current circumstances? Even with valid grounds to terminate, if the employer fails to follow company policies, there could be trouble. The risk of criminal exposure makes following the company policies ‘to a T’ even more important.
- Assess discipline imposed for similar misconduct. An employer would not consider firing an employee simply because they were hurt at work and filed a claim. However, what if the employer issued a warning or demoted an employee who had engaged in misconduct or exhibited poor work performance, but fired another employee who had a pending Workers' Compensation claim for the same behavior? The fired employee could question the stated reason for being fired as a pretext if the discipline imposed on him or her for similar conduct was more severe than for the other employee.
- Review the facts, circumstances and timeline. Let’s say the employer is considering terminating an employee for misconduct. Three weeks later the employee is injured and files a claim. If the misconduct were documented along with an investigative report, interviews with witnesses, management consultation, etc., the employer would have a plausible explanation that the timing of the termination decision was caused by the length of the investigation and was not related to the filing of the Workers' Compensation claim. If no investigative steps were taken or delayed until after the claim was filed, it becomes more difficult to prove that the termination decision was unrelated to the employee’s Workers' Compensation claim.
RPS can assist you with the placement of Workers’ Comp coverage as well as help businesses of all sizes minimize losses and reduce costs through robust safety programs, implementation of Return to Work programs, a review of claims handling and reporting procedures, pinpointing claims trends and evaluating accident history, and more.
Source: Foley & Lardner