Reprinted from the January 15, 2008, issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Can An Often-Injured Employee Be Fired?

Employees who repeatedly injure themselves on the job may seem like good candidates for the chopping block — it’s for their own safety, after all. Besides, you should be able to do what you need to do to keep Workers’ Compensation costs down, too. The reality, though, is that you may be guilty of illegally retaliating against an employee for filing Workers’ Comp claims.

HIGH WORKERS’ COMP COSTS

“The Workers’ Comp costs in my department are the highest in the company,” manager Theo Winstead complained to a fellow manager. “It’s largely to do with June Graham.”

“Is she the one with the back problem?” the other manager asked.

“Yes. After she hurt her back, I put her on light duty. Her doctor then sent more specific work restrictions. I need someone who can do the work,” a frustrated Winstead said.

“You know you can give her any work that fits her restrictions,” the manager advised.

“That’s right,” Winstead suddenly remembered. “Workers’ Comp people on light duty can be denied pay if they refuse to work. I can have her clean the bathrooms, sweep empty trailers, and wash the forklifts.

“I can always move her back to the job she had when she started here, too,” Winstead added. “It might be in her best interests…an improvement to her physical and mental health.”

After Winstead told Graham her options, she reluctantly accepted her old job, even though it paid less and resulted in a loss of seniority.

HIGH-HANDED REACTION

About a month later, Graham was injured again when a co-worker dropped a heavy box on her foot.

“I’m giving her a third ‘step’ warning for substandard performance,” Winstead told his co-worker. “One more, and she’s out.”

Under the company’s policy, the receipt of four step warnings within 12 months was cause for termination. The manager had given her the first one a few days after she hurt her back, and the second one shortly after her doctor sent more specific restrictions.

Soon after, Graham twisted her knee. “I don’t know if she should continue to work here in light of her excessive injuries,” Winstead said to the other manager.

A fourth step warning was forthcoming, and Graham was fired. She claimed in court that she was fired for pursuing her statutory right to compensation for a work-related injury. A jury awarded her $1 million for emotional distress, back pay, future pay, and punitive damages. An appeals court upheld the ruling, finding that the jury could reasonably believe that:

1. Graham was disciplined under false pretenses because most, if not all, of the warnings did not reflect any mistake of hers;

2. Employees who had not filed WC claims, who actually were responsible for the mistakes, were either not disciplined or were disciplined less severely with verbal warnings (which did not result in termination after receiving four within a year); and

3. Winstead’s views about the WC costs in his department showed that the employee was demoted to her old job because of the expenses associated with her WC benefits.

GET THE LOWDOWN

Workers’ Compensation laws vary by state, but it’s generally a violation of public policy to terminate an employee for filing WC claims. This means that, no matter how frustrated you are with an often-injured employee, you cannot fire them solely because they’re driving up WC costs. Termination would be appropriate only if they violated a known safety policy, they were negligent in their actions, or you have another legitimate performance issue. One of Winstead’s greatest missteps was firing Graham for mistakes that were not hers.

Note: It is not illegal, per se, to assign an employee low-level duties that fit their medical restrictions, even if the duties are not desirable. However, you must take care that assigning those duties is not perceived as a hostile reaction to WC claims or as a desire to force the employee out of your department or the company.

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