Can an Employer Terminate an Employee During Workman's Compensation?

Employers use caution when terminating a workman's compensation employee.
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When an employee files for workman's compensation benefits, she is protected by the laws of the land. In some cases, an employer may perceive that she is powerless to do or say anything to an employee who is receiving workers comp benefits. While it is risky business to terminate the employee, the employer still has the right to do so.

The Law

    The federal government has rules and regulations that help to protect employees receiving worker's comp benefits. States have their own laws and worker's compensation acts, as well. There are no rules saying an employee can't be terminated after she files for benefits or while she is receiving benefits. However, there are rules that protect her from wrongful termination.

A Tricky Situation

    Firing an employee after she files for worker's compensation is a tricky situation, one that can backfire in the employer's face. For this reason, some employers avoid it at all cost. The situation is tricky because the employee can claim that she is the victim of wrongful termination. She can even start legal action against the employer by filing a “retaliatory discharge” lawsuit. If she files this lawsuit, the burden of proof is on the employer. This means the employee does not have to prove the termination was a form of retaliation. Instead, the employer has to prove that it wasn't.

Employee's Track Record

    If a retaliation lawsuit is filed, one of the things a judge will look at is the employee's track record on the job. For instance, the employee may have a long history of performance issues that started before the worker's comp claim was filed. Perhaps she is on her final step of a disclipinary process, with the last step being termination. Otherwise, termination is risky business. If the employee has a negative track record, the employer may be justified in terminating her.

Paper Trail Is Needed

    If the employer goes through with the termination, she needs to make sure her behind is covered, legal-wise. She needs a thorough paper trail that documents all of the employee's past performance and discliplinary issues. Each time an incident happens, it needs to be documented. There also needs to be documentation proving the employee was properly warned or notifed of her performance issues and was given the opportunity to correct them. If there is a paper trail showing the employee was a disclipinary problem before she filed for worker's comp, the courts may view the termination as justified. If the paper trail was only started after the employee filed for worker's comp, the courts may view the paper trail as invalid and rule in favor of the employee.

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