Can you fire someone who’s out for a work-related injury?

By: Ed Zalewski

Publication: Supervisor Safety Alert

Date Posted: 07/01/2021

Firing employee who is off work due to work-related injury

Many supervisors have wondered if they can fire an employee who is off work because of a work-related injury. The short answer is yes, but you’ll need to provide a legitimate reason for termination in order to avoid the appearance of retaliation. In many cases, you can even fire an employee for refusing a light duty offer.

You cannot fire an employee simply for reporting an injury or filing a workers’ compensation claim, but you can fire them for other valid reasons, even after they report an injury or file a claim.

Most states allow you to fire an employee without giving a specific reason, although most employers won’t agree to terminate someone unless they have a reason. In addition, that reason needs to be supported by documentation such as written warnings.

Show documentation for firing

Laws that protect employees from discrimination or retaliation do not protect them from termination, if you have a valid reason. For example, an employee cannot be fired because of race, gender, or national origin. However, any employee could still be fired for reasons like theft, workplace violence, or violating company policies.

If an employee engaged in protected activity (such as filing a workers’ compensation claim) and you want to fire that employee, you’ll need to show that anyone would have been fired in that situation, and the protected activity was not a consideration.

To accomplish that, you’ll need to show documentation of the reason, such as repeated warnings for violating safety rules. Even if warning are delivered verbally, you should document the date and nature of the warning. Simply claiming that “I’ve warned him verbally several times” usually won’t be sufficient.

Employee refusing light duty after doctor release

If a doctor releases an injured employee to work with restrictions, and the company offers work within those restrictions, you can expect the employee to show up for work. In many cases, refusing to report for light duty can be treated the same as a refusing to work any other shift. The employee might be fired or told that refusal to work is considered job abandonment.

However, if the employee is protected under the Family and Medical Leave Act (FMLA), termination is not an option. The FMLA can apply to a workers’ compensation injury, and gives the employee a right to time off until he or she can return to the former position (not merely to a light duty position).

If an employee refuses a light duty offer, he or she will likely lose wage replacement benefits under workers’ compensation. Still, an employee protected by the FMLA can take unpaid leave until he or she can return to the same job, or until the 12 weeks of FMLA leave are exhausted.

Even employees protected by the FMLA can be fired for valid reasons, such as theft or violations of company policies. However, any termination should proceed with caution, and employers should consider consulting with an employment law attorney about the situation.

About the author
Ed Zalewski - EH&S Editor

Ed specializes in safety issues such as injury recordkeeping, walking-working surfaces, and forklifts. He is responsible for researching regulatory activity and issues facing EHS professionals in order to develop and update content for J. J. Keller’s EHS products.

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