Terminating an employee who's workers' comp

HRBiker

I know we can't terminate or discriminate against an employee who has filed a workers' comp claim. But the worker in question, while not permanently disabled, is going to be unable to work for months. We need to fill this slot. Can we terminate him for violating our attendance policy?

GoPatsNH

i wouldn't...can you hire a temporary worker to fill the spot while this employee is out on workers' comp?

HRBiker

It's not the kind of job a temp would be good for. We have alot of unique procedures that we use. It takes several weeks to get up to speed.  On the other hand, this guy who out on comp was only a so-so worker at best. We'd really like to replace him.

ronnier

I was trying to find some case law, each state is a little different.  The best answer is to tell you that no you can not terminate the employee.  If the employee was on modified duty and was due in each day at 8:00 and showed up late several days and you followed your attendance policy that lead to termination.  That would be ok (in my opinion) because it was outside the w/c case and based on policy.  But since the employee is out of work due to w/c and has not violated any policy (based on your entries) you have no grounds for terminations.  Best of luck, Mr. Rogers

Richard3

You would definitely be walking on dangerous ground to fire the employee. I wouldn't do it.

kdwade40

Depending on what state you are in, if the person was place on an FMLA leave and has used up all their time you can back fill the position with a new person. However, you should not terminate the wc person off your payroll for up to a year. After a year is up and he/she has not returned to work, even on modified duty, then you can usually terminate them. I would recommend you backfill the position, utilizing the FMLA leave as a basis for getting someone new.

robertcc

I wouldn't.  Is he still protected under the family medical leave act?  We have a policy that once your family medical leave runs out we keep you on the payroll (without pay) for a year (beginning with the start of the family medical leave).  Then if you haven't returned by then, we do a medical termination.  In the meantime, if we need to fill the slot, we go ahead and hire someone.