Termination of Employee Receiving Workers’ Compensation
By Gordon Bosserman
Last week the Cal Chamber published a timely article entitled “Take Care to Avoid Discriminating Against an Employee on Workers’ Comp.” While it was an excellent article and contained valuable information and recommendations, the significant bits of which will be highlighted below, the portion of the article stating that “[i]n general, once employees go out on workers’ compensation, their position is protected and they can come back to that job once they recover..” is somewhat overstated in relation to the question raised by the employer, i.e., can an employer discharge an employee while he or she is away from work on a Workers’ Comp leave [in this case, an employee who had been out for more than a year] in a situation where the employee’s doctor keeps extending his or her disability? The employer wants to know if the employee can be replaced. The answer in the article seems to be “no.” We believe the answer should be “possibly,” depending on the facts and circumstances of the particular absence.
First, employees who file Workers’ Comp claims are protected by law from retaliation. See, Cal Labor Code section 132a, proof of a violation of which can carry with it serious penalties, such as, reinstatement, payment of back pay and benefits and the payment of a penalty of 50% of the compensation award or $10,000, whichever is less.
Second, depending on the number of employees the employer has, there may be reinstatement and accommodation issues under the federal Family Medical Leave Act (FMLA) or the state California Family Rights Act (CFRA) as well as the Equal Employment Opportunity Act (EEOA) and the Fair Employment and Housing Act (FEHA).
However, an employee on a Workers’ Compensation leave may be let go under the proper circumstances, such as, for example, where his or her medical condition has become “permanent and stationary” and yet the employee cannot return to work because he or she cannot perform the required job duties. There is also a “business necessities” defense which allows the termination of an employee on a Workers’ Compensation leave if the employer can show that his or her position had to be filled in order for the business to be properly operated.
Finally, the article also discusses the untenable position in which an employer finds him or herself where the employer wants to fire an employee who suddenly develops an allegedly work- related injury. The answer here again depends on the circumstances of the particular situation, such as, what the employee has done or failed to do that is considered grounds for termination. More frequently, however, the employer is faced with a situation where he or she was just about to terminate the employee, but he or she has not properly documented the employee’s history of poor performance. Under these circumstances, it can be very difficult to convince a judge, jury or Deputy Labor Commissioner, whoever may be hearing the case, that the termination was not done for retaliatory reasons. The message here is simple: the employer must document each incident that is considered a failure of proper performance and develop a consistent history of recording instances of the employee’s unsatisfactory performance.
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