Terminating Injured Employee

HRGuyMS

[font size="1" color="#FF0000"]LAST EDITED ON 02-19-04 AT 03:46PM (CST)[/font][br][br]How do you legally terminate an employee who was injured on the job (due to violation of safety rules) and is out on worker's comp? Let me mention that the employee is in Kentucky.

mushroomHR

I would check with your Bureau of Workers' Compensation or corporate attorney. In the state of Ohio you cannot terminate an employee who is collecting temporary total disability. It is a violation of public policy to do so.

Don D

You're in Mississippi. In this state, workers' comp is not a job protection statute. There is no requirement that a person out on comp be retained on the job. Additionally, there is no such thing as workers' comp retaliation in this state. But, that doesn't necessarily equate to a recommendation. I don't have the facts. Through consultation with your comp carrier and safety manager, you may decide that the safety violation(s) are adequate to suggest termination. You may or may not want to run it by an attorney. By the way, I am assuming (and I don't know why) that she is not concurrently out on FMLA, in which case, she IS enjoying a job protection statute.

Peyton Irby MS

there is no statutory or court mandated protection for a workers' comp recipient/claimant in MS. we assume there is no ADA or FMLA issue.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

Brad Forrister

As I read your post, your employee is in Kentucky, not Mississippi. Kentucky does prohibit retaliatory discharge of employees for filing a workers' comp claim. That's not what you're doing, of course, but that's what the employee would claim. I'd get some advice from an employment law attorney in Kentucky before proceeding.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Don D

I notice you edited your original post to now say that the employee is in Kentucky, not Mississippi, as was assumed. That does make quite a difference.

LFernandes

Does the employee qualify for FMLA? If so, it can run concurrently with WC. When they run out of FMLA they can be terminated provided there isn't an ADA issue. Start clocking the time right now if you haven't already. However, you can't retro back to the date of injury you can just go forward at this point.

Good luck.

Brad Forrister

You can't fire someone for filing a workers' comp claim. But you can fire someone for violating a safety rule. And you can do it while they're out on workers' comp. But because of the first issue, you ought to do it very carefully. Make sure you've got proof, make sure you've got support in your policies, watch out for FMLA issues, and probably get a Kentucky lawyer's advice.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers