November 14, 2012
Workers’ compensation: When can employer terminate a worker with a claim?

When can an employer terminate a worker with a workers’ compensation claim? For any employer considering firing an employee who is out on workers’ comp leave—or recently back from it—don’t make a move before considering all the angles. There are times when discipline or even termination is definitely warranted, just as it would be for any other employee, but workers’ compensation adds another layer of risk that must be managed.

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Can a workers’ Compensation claimant be terminated?

Most state workers’ compensation laws provide that "it is unlawful for an employer to discharge or discriminate or retaliate in any way against a workers’ comp claimant because they either sought workers’ compensation benefits or because they testified at a comp hearing." Adele Abrams told us in a recent BLR webinar.

However, the employer may "lawfully discipline or terminate pending workers’ comp claimants [or] those who have former workers’ comp claims as long as it is not retaliatory and as long as it is based on misconduct that is unrelated to the workers’ compensation claim." The primary question becomes whether or not the employer’s proffered reasons for termination are credible versus pretextual.

Can a workers’ compensation claimant be disciplined?

"Can you discipline a workers’ comp claimant? Well of course you can." Abrams confirmed. The employer can proceed with disciplining—just as they can proceed with terminating—a workers’ compensation claimant if it can show good cause. In determining whether there was good cause, the court can "consider the business judgment of the employer, or the fairness to the employee of the decision to discharge" or discipline, while still giving substantial weight to managerial discretion. "They’re not going to substitute their judgment as the court for the judgment of a manager, as long as there’s evidence that the employer acted in good faith." Abrams explained.

For an employer to show they acted in good faith, it is critical that the employer follows their own progressive discipline system precisely and avoids giving harsher discipline or skipping steps for workers’ compensation claimants only. "Whenever you skip steps, whenever you’re engaging in disparate treatment against a workers’ comp claimant (treating them more harshly), that is going to give rise to the likelihood that they will find that there was discrimination or retaliation." Abrams warned. And "remember, in these cases, all of your disciplinary records going back a number of years are going to become fair game for discovery."

Basically, discipline can be imposed on protected workers when warranted, but the same standards must be applied to all workers—no departures from the employer’s normal practices and policies. Be very careful to be consistent in the application of existing rules—if conduct was tolerated prior to the workers’ compensation claim, subsequent discipline will seem retaliatory, even if it is in line with established policy. "The bottom line is that you cannot retaliate against employees because they exercise their rights."

For more information on legally disciplining or terminating workers’ compensation claimants, order the webinar recording of "Workers’ Comp: How to Discipline or Terminate Claimants While Minimizing Your Legal Risks." To register for a future webinar, visit

Adele Abrams, Esq., CMSP, is recognized as a national expert on occupational safety and health. She heads a nine-attorney firm, the Law Office of Adele L. Abrams PC, that represents employers and contractors nationwide in OSHA and MSHA litigation, and provides safety and health training, auditing, and consultation services.

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