Terminating an employee on WC

little lee

We have an older maintenance worker, who has worked for us for over 10 years. He injured his back a few months ago moving a table. He claimed that an ongoing hernia problem needed surgery due this injury. He was out for about 2 weeks after the surgery and is currently on WC, back to work light duty. He just slipped on the ice the week before the school shut down for Christmas break, thus another WC claim. His supervisor claims that this employees performance is marginal even before the injury. With this second injury, he was scheduled to start physical therapy on Dec 27 but told the doctors that he didn't want to start until Jan 2 when he was due back to work after Christmas break. Does it appear that this employee is using us, going to PT on company time only. What are our chances of letting him go legally?

Theresa Gegen TX

This is a very riskly situation legally. You really need to discuss it with a local attorney who understands your state's worker's compensation laws.

Good Luck!

Down_the_Middle

How unusual for a marginal employee to be trapped in the w/comp arena....... And I'll be the performance issues aren't documented very well either.......
Regardless of which state you're in, I would think discharging this person will be viewed as retaliatory for filing a w/comp claim and most states prohibit this. A better route is to: 1) manage the comp case by scheduling the treatment and expecting the employee to comply. While you have to be reasonable in scheduling therapy, you do not have to be victimized by the employee telling you when, how and where......; Your state probably has requirements that the employee cooperate in the healing process, so there's an obligation for him to abide by the appt's and treatments that are scheduled; 2) do you have a transitional duty (light duty) program that permits the employee to get back to work early??? You don't get injured workers well to get them back to duty-----you get them back to work to enhance the healing process..... 3) discuss any termination with an attorney to better understand your risks and liabilities.

CuriousG

Let's make it three votes for reviewing this with local counsel. My advice is do not treat this as a "single issue" action. Review all the possible actions this employee could bring, and then make the right decision for the right reasons.

In my experience, you need to talk to two different attorneys. One who is knowledgible about your state's Worker's Comp system, and the second who is familiar with Title VII, ADA, etc... Since the Worker's Comp system is separate from the constitutional court systems most knowledgible (and honest)Comp attorneys will admit they know little to nothing of things like the ADA, Title VII, ADEA and the like. The same is usually true of a good Employee Relations Attorney as well.

I recently had a case where my Comp attorney was telling me I could terminate an employee who had been out on TTD for 2+ years. Fortunately I elected to review the Title VII and ADA issues with my Employee Relations Counsel, and she made me aware of recent changes in the Worker's Comp law that made what I was about to do illegal! She also suggested some "due dilligence" activity with my Worker's Comp insurance carrier (a call to be sure I had the latest med reports). I found out I did not have the current story on the case. I had been told by the Comp attorney that TTD was terminated, but she forgot to mention the WC Judge has reinstated it. Ouch! That would have really smarted if I had not double checked.