Image of astronaut on moon with title Houston we have a problem employee

Houston, we have a problem…employee

You know the one—They never quite meet the standards for the job.  They’re always complaining about something.  Then they claim to suffer a mysterious injury at work—the circumstances just don’t add up and now they’re telling you they’ll be off for weeks.  You weren’t happy with their performance before and now you want to get rid of them.  Can you?

Stop.  Take a deep breath.  And think it through.  Employers need to be careful when discharging employees who have filed or may file a workers’ compensation claim.  The workers’ comp system was designed as a grand bargain between employers and employees.  Employees accept lower benefit levels with a greater assurance of recovery, while employers give up their common law defenses and are protected from unlimited liability.  It’s a compromise.

In the spirit of that compromise, there are certain things employers can’t do.  Employers can’t retaliate against employees for filing or pursuing a workers’ compensation claim.  You can’t fire them, demote them, or take any punitive action against them because they filed a claim. That’s as it should be.  Employees should feel free to file legitimate workers’ compensation claims without fear of retribution.

But workers’ comp is not a shield for employees.  You can still discipline or discharge an employee who is receiving workers’ compensation benefits if you would take the same action with an employee who is not receiving workers’ comp.  The key is to base your decisions on the employee’s conduct, not their workers’ compensation claim.  A workers’ compensation claimant is still required to comply with work rules and attendance policies.  If an employee violates those rules, they may be subject to discipline or termination.  Likewise, a workers’ compensation claimant can be lawfully terminated pursuant to a collective bargaining agreement or a neutral leave of absence policy.  But be sure you comply with all other relevant laws (such as the ADA and FMLA), as well as your own leave policies, when deciding whether to terminate an employee who is receiving workers’ compensation benefits.

Bottom line—Employers can’t treat employees differently because they have filed, or may file, a workers’ compensation claim.  Employers should have clear policies in place and follow them.  To avoid workers’ compensation retaliation claims, base your decisions on an employee’s conduct, not their workers’ compensation claim.  And consult with counsel if you need assistance navigating the many complex laws governing employer-employee relationships.