Q. I have a fairly good 48-year-old employee who has a chronic problem with Workers' Comp claims. This individual is constantly getting injured and missing a lot of work because of these injuries. I am afraid he is building up to a permanent disability claim. Can I legally terminate him?
A. Dismissing an employee for filing Workers' Comp claims is a violation of public policy.
Courts have established and upheld state statutes protecting employees from being dismissed from their jobs for filing Workers' Comp claims. In addition, your employee may very well be protected from discrimination by the federal Americans with Disabilities Act (ADA) and similar state laws.
There are several actions you can take which may at least minimize future risks for you and the employee:
Study the past injuries this employee has had. Do you see any patterns? For example: Have at least some of the injuries occurred by stumbling or falling? This may indicate a health-related "balance" problem.
Compare the time of day and even the day of the week when these injuries have happened. If the time of day shows a pattern, it's possible the effects of medication could be a reason. If accidents happen on the same day of the week, perhaps they are related to activities of the night before.
Visit with the employee and ask if he or she knows of any reason why there are repeated injuries.
Depending on the employee's job, do as much as possible to limit this employee's exposure to high-risk job duties and work areas.
Consult with your attorney. Have your attorney review the facts involving the individual and the injuries. Your attorney may conclude the employee is filing fraudulent claims and may recommend actions you can take as a result.
Caution: If at any time or for any reason this employee is terminated or laid off, keep in mind that regardless or your intent, he or she is well-protected from wrongful discharge in at least three areas: Workers' Compensation, age discrimination and disability discrimination.
