It comes to many employers’ surprise that it can be legal to let an employee go who is out on workers’ compensation leave. The fact that an employee was hurt at work generally does not guarantee that his or her job will be held indefinitely. This ability to let an employee go may be altered by a union collective bargaining agreement, however. Additionally, employees in the civil service sector who are injured on the job have certain rights both for their job to be held and to return to a position even potentially years after the injury. For these reasons, it is important to be familiar with the laws governing your employees and their rights to leaves of absence.
That said, in a non-union, private-employer setting, employees who were injured on the job do not have rights for their job to be held forever.
Before pulling the trigger on an employee termination, there are a number of issues to consider.
- Is the employee eligible for leave under the Federal Family and Medical Leave Act? (See FMLA and WC) Covered employers with 50 or more employees need to provide up to 12 weeks of certain job-protected leave in a 12-month period to employees who satisfy certain eligibility requirements, such as having worked for the company for 12 months. (See FMLA Eligible Employees )
- Is the employee entitled to leave as a reasonable accommodation under applicable disability discrimination law? These laws require employers to provide leave so the employee can get better and return to work. At a minimum, employers need to consider if this accommodation is feasible.
- Will the employee ever be able to return to work? If not, leave may not be required. However, employers need to consider whether the individual’s health care provider is yet able to tell if the person can return to work.
- Could a termination be viewed a retaliatory under the Workers’ Compensation Laws? These laws prohibit employers from terminating employees because they availed themselves of workers’ compensation benefits to which they were legally entitled. Employees who are let go while on workers’ compensation leaves can bring retaliation claims, because of how the situation appears to the employee. Employers should ensure that not only was there no actual retaliation, but no appearance of retaliation.
It can be tricky to navigate the multiple and overlapping laws that could apply when considering whether to terminate the employment of an employee on workers’ compensation leave. Consult with employment counsel familiar with the many laws applicable to your employees to best protect your company.
