An employee hurts themselves at work resulting in a worker’s compensation arrangement. You have multiple write ups for this individual, but now they are at home. Have you been unable to contact the individual? Is this employee’s position at the job site now on hold? Were you already planning to fire him before the injury occurred? If any of these questions sound familiar you may want to ask, “Can I fire this employee even though they have filed a worker’s compensation claim?” The answer may be YES.
However…proof of business necessity needs to be established. Factors to determine business necessity include (source: reish.com):
- The employer is shorthanded and others cannot cover the workload without costly training of fellow co-workers
- The employee violated important company policies.
- The employee had habitual problems with absenteeism with, and without, notification
- The employee failed to keep the employer “in the loop” of anticipated return to work dates
- A prior to injury sub-standard performance at work.
Although terminating an employee of a protected class is dicey, well kept and organized employers should have no problem by showing clear policy and documentation practices. Showing that you uniformly apply and adhere to your company’s rules, and are providing ample opportunity for employee education of job site procedures should only make your claim more solid.
The ramification of making a wrong decision can result in many claims against the employer, including civilly. A meeting with your employment attorney to discuss all the risks is a good idea before making your decision.
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