Donald Trump’s TV series has everyone joking about firing or being fired, although for anyone who has ever been on either end of the equation – as the manager who fires, or as the employee who is fired – it is rarely a joking matter.
Some would make the case that in today’s litigious society, most companies don’t ‘fire’ employees outright anymore, fearing a charge of discrimination or wrongful termination. It does seem as though downsizing, outsourcing, re-engineering, plant closings, mergers, and a host of other euphemistic group actions have all but replaced the plain vanilla one-to-one termination, at least for large companies. Nevertheless, when there’s a continuing employee performance issue, terminating employment is sometimes the only course of action. And, in some instances, an employer may even be sued for not terminating an employee, such as when that employee poses a danger to other employees.
What about firing an employee who is out on leave for workers compensation?
That’s a question we often get. In these cases, we will often hear a long litany of complaints about the employee, sometimes going back years. From the employer’s perspective, the workers comp claim is often viewed as the final straw in a continuing series of problems with that particular employee; at other times, it simply may appear to be a convenient, neat way to resolve an ongoing problem.
Firing an employee while he or she is out on workers compensation disability leave is almost always a bad idea. For one thing, many states have laws that prohibit retaliatory firings for workers who file claims. Even if this were not the case, it’s not a good idea to use workers comp as a tool to resolve human resource issues.
There may indeed be some instances where termination would not violate the law, such as in cases of business necessity or for an egregious breach of policy.