Termination & WC

HRH

We have an employee that we want to terminate but have just entered into a WC claim with her. Think we are in the Danger Zone here and wanted your advice. Thank you!

sandra_d

I would guess that a claim of retaliation for engaging in a protected right (filing a work comp claim) is very possible. However, I assume that you aren't looking to fire because she filed a wc claim, but because of other reasons - ?? If you can demonstrate that you've followed your own internal procedures in disciplining/terminating her for performance problems, and/or that you have a history of treating others who have performance problems similar to hers, in the same way that you propose treating her, you are on "safer" ground. Having a past precedent won't protect you from defending yourself in a claim, but it will give you at least one crutch to lean on in defending your actions.

I don't know the laws in your state, but here, if we fired someone on work comp who was able to work with restrictions, for example, but couldn't find another job because nobody would hire her while she had work limitations, she would probably be eligible to receive temp total or temp partial wage replacement from the wc carrier. That of course would impact our mod factor and future premiums. Therefore, if at all possible we try and keep employees on staff through the conclusion of their claim so that we can have at least some control over them and their work schedule. Once you terminate someone, you pretty much lose any little bit of control or influence you could have had on managing the cost and length of the claim. (I know it is also hard, however, to keep someone on staff who clearly needs to go!!)

HRH

Thank you! The termination would not be related to the WC - just bad luck in the timing.

LivindonSouth

Be sure to check your state law. Many states have restrictions on what personnel actions can be taken while on WC. Our state for example does NOT and there's no such thing here as WC retaliation. If you were in the process of disciplinary action that would have occured had it not been for the accident/injury, I recommend proceeding with the action. If this is an employee whose productivity has resulted in a decision that you don't want her employed, take the opportunity, regardless of the claim. You really won't have gained anything by delaying the inevitable.