“The difficult workers’ compensation problems are only one aspect of a multi-dimensional employment law problem.”, noted David Schmit in a BLR webinar titled “Workers’ Comp: How to Discipline or Terminate Claimants While Minimizing Your Legal Risks,”.
If you’ve been considering firing an employee who is out on workers’ comp leave – or recently back from it – don’t make a move before considering all the angles and various legal issues at hand. There are times when termination is definitely warranted, just as it would be for any other employee, but workers’ compensation laws and the related employment laws all add additional layers of risk you must manage.
Workers’ Compensation Overview
Workers’ compensation is no fault and limited liability. This means that all workplace injuries are covered, regardless of what the cause of the injury was. The only test is whether the injury or illness was a result of (arising out of) employment and/or sustained during the course of employment. Claims can even be brought after an employee has been terminated if it is shown that the injury was incurred while employed.
If that test is met, the employee has an automatic entitlement to benefits. All employers are covered and it is compulsory to have workers’ compensation insurance as a result.
When is an Injury or Illness Not Covered by Workers’ Compensation?
As mentioned above, the injury must arise out of and in the course of employment (AOE/COE). However, this excludes:
- Intoxication
- Intentionally self-inflicted injury
- Willfully and deliberately causing own death (suicide)
- Altercation when the injured employee was the initial physical aggressor
- Commission of a felony
- Off-duty recreational, social, or athletic activity that is not part of the employee’s work related duties (exception: if there is express/implied expectancy to participate by the employer)
The Intersection of Legal Issues: Workers’ Compensation and Other Employment Laws
“The workers’ compensation claimants are in a protected class. The sources of the protection come from federal and state civil rights acts, they come from workers’ compensation laws, and they come from other statutes.” Schmit explained. “The other kinds of statutes that we might be talking about would be the Americans with Disabilities Act, the Family and Medical Leave Act, and other similar state statues. In addition, we are dealing with case law that is developed uniquely in the individual states.”
Dealing with the federal and state statues, Schmit continued: “Generally, a workers’ compensation claimant has a right to his job under workers’ compensation, unless there’s medical evidence to prove he can no longer perform it. Under the Americans with Disabilities Act, and similar state acts, these protected persons with a disability who are able to perform the essential functions of their job – with or without a reasonable accommodation. Next, there’s the Family Medical Leave Act. The Family Medical Leave Act protects those who have taken 12 weeks or less time off because of their own serious health condition, or that of their spouse, child, or parent. Of course, their own serious health condition could include a workers’ compensation claim.”
Workers’ Compensation Job Protection Versus At-Will Employment
What about at-will employment? How does this doctrine come into play with workers who are out on workers’ compensation leave? If you’re an at-will employer, don’t you have the right to terminate an employee at any time? Actually, no. Schmit explained that “the at-will employment is simply not a factor in these discussions. Exceptions to at-will employment include workers’ compensation claimants and persons with disabilities.”
That said, this does not mean that a worker who has filed a workers’ compensation claim is not subject to your disciplinary policy – just be sure you have thorough documentation. For example, theft, fighting, tardiness, insubordination, disruptive behavior, or harassment of others are all examples of behavior that warrant disciplinary procedures, up to and including termination in some cases. It’s important to consult the employee handbook and treat employees consistently.
Attorney David Schmit is the founder of Schmit Law in Oakland, California. Schmit represents employers’ interests in state and federal courts and administrative forums in workers’ compensation matters, including workers’ compensation, civil personal injury law, and wrongful termination cases.
I agree that intoxication isn’t a work comp issue but can fall under ADA in some circumstances, particularly if an employee has been in treatment in the past….case-by-case of course but important to have all the data to make the decision.
“Claims can even be brought after an employee has been terminated if it is shown that the injury was incurred while employed.” Yet another reason it’s so important to document injuries in a timely manner, including getting written statements from witnesses.