“You will find that pretty much every workers’ comp law in the country does have anti-retaliation provisions. And so, just the act of filing a workers’ comp claim gives somebody protected status that’s somewhat analogous to somebody filing a complaint with the Equal Employment Opportunity Commission or filing a complaint under one of the wage/hour laws with the Department of Labor or filing an FMLA claim—all of those federal laws have anti-retaliation provisions as well.” Abrams explained.
This brings up another point: an employee may have coverage under multiple statutes that protect them from discrimination or retaliation, because very often workers’ comp claims end up implicating other regulations, like the Americans with Disabilities Act and the Family and Medical Leave Act. Employers are left to juggle all related statutes and ensure that none of them are being violated.
Can a Workers’ Compensation Claimant Ever be Disciplined or Terminated?
A more basic question is this: Can you terminate an employee simply because they filed for workers’ compensation? The answer to that is a resounding no. Most state workers’ compensation laws provide that it is unlawful for an employer to discharge or otherwise discriminate/retaliate against a worker for claiming worker’s comp or testifying at a workers’ comp hearing. However, beyond that, workers’ comp claimants can be legally terminated or disciplined as long as you’re not doing it because of their act of filing workers’ comp. What you need is a level playing field and proof that they are not being treated in a disparate manner.
If a claim is levied, the claimant (typically the employee or an agency acting on their behalf) bears the burden of persuasion in retaliatory discharge claims. The relevant inquiry becomes whether or not the employer’s stated reasons for termination are credible versus pretextual.
“The bottom line is, yes they can be lawfully terminated or disciplined as long as it is based on misconduct unrelated to the workers’ comp claim, or the employer is able to demonstrate business necessity.” Abrams concluded.
For more details on when a worker’s comp claimant can be legally disciplined or terminated, order the webinar recording of ” Workers’ Comp: How to Discipline or Terminate Claimants While Minimizing Your Legal Risks.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Adele Abrams, Esq., CMSP, is recognized as a national expert on occupational safety and health. She heads a nine-attorney firm, the Law Office of Adele L. Abrams PC, that represents employers and contractors nationwide in OSHA and MSHA litigation, and provides safety and health training, auditing, and consultation services.
Simply filing a WC claim doesn’t immunize an employee from discipline (although they often seem to think otherwise). Like any other kind of discipline, you’ll be OK as long as you have adequate documentation of the employee’s performance or other problems and apply your disciplinary policy on a consistent basis.