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'For Cause' Termination and Rehab

Saturday, November 8, 2003 | 867 | 0 | min read

Can an employer use a "for cause" termination to argue that it otherwise would have offered the QIW injured employee a modified or alternative job? "It depends...."

In Abraham Robertson v. WCAB, Mountain People's Warehouse et al (10/21/03, CO 42822), the 3rd District Court of Appeal determined that an employer's "for cause" termination of the employee did not relieve it of the obligation to provide vocational rehabilitation where the basis for termination was based on a discretionary company policy. Prior to injury, the employee (Robertson) had a problem with tardiness and absenteeism. After the injury occurred, the employer enforced a company policy limiting the number of admissible attendance violations. When the employee requested VR services, the employer denied the request, arguing that it would have provided modified or alternative work but for the employee's termination for cause. At trial, the employer argued that its situation was analogous to Del Taco where the employer was not obligated to provide VR services because, but for the employee's undocumented status, it could offer modified/alternative work.

The DCA rejected the employer's arguments for two reasons. First, it indicated that the employer's absenteeism policy was discretionary and did not require termination; the employer was not therefore precluded from offering a modified or alternative position. Secondly, it disagreed with the employer's Del Taco analogy. In Del Taco, the employee had committed a criminal act (being in the country illegally and Robertson's absenteeism was not a criminal act. Further, the employer in Del Taco would have been committing a criminal act by offering employment to an undocumented worker but that would not have been the case for Robertson; the employer was therefore not precluded from offering a position to the employee.

Does this mean employers cannot use a "for cause" argument relative to modified/alternative job offers and VR services? It depends on the circumstances. This case provides some guidance on circumstances that may survive on appeal. If the employee committed a crime (e.g., theft, illegal use of drugs, violence), the defense may hold up (but keep in mind that proof will be required - an allegation is not proof). And employers need to keep in mind that they must act timely on violations of company policy. If Robertson had been fired timely for his absenteeism, there would have been no WCAB case.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

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