Can You Terminate an Employee on Work Comp?

Wednesday, June 3, 2009 | 0

By Jon Coppelman 

Here's a question that comes up frequently in our employer seminars: Can you terminate an employee who is on workers' comp? In general, it's not a good idea. In many states there is a presumption that the termination is in retaliation for filing the comp claim. Nonetheless, the complete answer to the question is yes, you can, but you must do it very carefully.

The invaluable Risk and Insurance Magazine describes a case in Texas that illustrates this point nicely (Williams v AT&T, U.S. District Court, Southern Texas). Williams, a telecommunications tech, alleged that he sprained his leg stepping down from a ladder. He was a bit confused about the exact date, offering more than one in his descriptions of the incident. His claim was denied.

One month later, he violated an important company policy and was suspended and then terminated. Even though his comp claim was denied, he alleged that he was terminated in retaliation for filing the claim. He sued AT&T for violating the Texas comp act.

Keep in mind, the employer must be able to demonstrate that the termination had nothing to do with the (denied) claim. In this situation, the burden of proof is definitely on the employer. AT&T presented evidence that Williams had a history of poor performance and excessive disciplinary actions for more than a year prior to the alleged injury. In other words, two key criteria of proof were met: the disciplinary problems preceded the workers' comp incident and they were thoroughly documented.

The court granted summary judgment to the employer.

While falling under the protected class of employees who have filed comp claims, Williams could not establish that his termination was related to the comp claim. There were plenty of other reasons for the employer's actions.

I often hear employers complain that they had been planning to terminate a marginal employee, but then the employee got hurt. In most cases, there is inadequate documentation of poor performance prior to the injury. These employers are stuck: any attempt to document performance issues after the injury will be viewed sceptically by the court. The termination will trigger retaliation claims.

Here is a quick tip to avoid this situation: Fire marginal employees before they get hurt. Once employees are injured on the job, an employer's options narrow significantly. Given that marginal employees are more likely to be injured - that's part of what makes them marginal - prompt action to end their employment is an essential "best practice."


======
This column was posted on Lynch Ryan's Web log (blog) at http://www.workerscompinsider.com.
======