Yes, Virginia, You May Fire a Workers' Comp Claimant
Tuesday, December 11, 2012 | 0
Michigan’s Legislature enacted significant changes to our Workers’ Disability Compensation Act (the Act) in 2011. The amendments, which became effective on Dec. 19, 2011, include a provision disentitling an injured worker from receiving wage-loss benefits when terminated for cause or “for fault of the employee.” This is in sharp contrast to previous language which protected a worker from losing his or her job “for whatever reason” (while on restricted work for less than 100 weeks).
Of course, the Act still prohibits an employer from discharging, discriminating or retaliating against an individual making a claim for workers’ compensation benefits.
To minimize the potential for allegations of discrimination, an employer should assess three critical factors prior to finalizing the termination of employment:
- documentation;
- past practices; and
- consistency.
Documentation is important with all disciplinary action and becomes crucial when severing ties with a workers’ compensation claimant. The file needs to include clear documentation of the transgressions and policy violation(s), communication of the action to the employee and measures taken to assist the worker in improving his or her performance. Written confirmation of the steps in the disciplinary process and/or performance improvement plans provides insulation from accusations of disparate treatment or unfairness.
A workers’ compensation claimant who violates company policy is not necessarily entitled to special treatment. The standard for an injured employee’s behavior, however, cannot be more stringent than what is imposed on the rest of the workforce. Assess the company’s historical response to similar transgressions. Look at comparable situations involving noninjured individuals and apply the same response. Terminating a workers’ compensation claimant shortly after a return to work, particularly while on medical restrictions, raises a red flag in terms of timing. Being able to show the company acted consistently in the same manner, irrespective of the worker’s injury status, offers another layer of protection from post-termination litigation.
If an employee is terminated from reasonable employment for fault of the employee, the employee is considered to have voluntarily removed himself or herself from the workforce and is not entitled to any wage-loss benefits under the Act.
Gerardyne M. Drozdowski is a senior counsel with Warner Norcross & Judd in Grand Rapids, Mich.
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