Firing employees on workers' comp can present challenges

They say that most things in life swing like a pendulum from extreme to extreme. We know the business economy follows a boom-and-bust cycle that is mitigated only marginally through government intervention. Also, the political inclinations of society vacillate between conservative and liberal thought and from intolerance to excessive political correctness.

There are similar swings in the law. Not so long ago, employers were able to abuse the workers' compensation system as well as employees' rights by using the threat of loss of employment to discourage workers from making compensation claims. Employees didn't understand the system and frequently held back from making claims for injuries out of fear that they might have no job once they came back from a compensation-related leave.

Those days are well behind us. The legal pendulum has swung far away from employer abuse and moved, some would say, quite far in the opposite direction. Today, it is commonplace for an employee to sue an employer for improper discharge on grounds that either are fabricated or at best marginally based on fact.

One of those grounds is that the employer violated the labor law when he fired the former employee because the employee had or was about to make a claim for workers' compensation.

Here is how it works:

A veterinary-clinic worker may be doing a poor or dismal job but getting away with it. The boss or hospital supervisor doesn't find the time or have the stomach to sternly reprimand or fire the worker for lousy performance.

Then, it happens: The crummy worker gets hurt on the job and is off for a month or so nursing the work-related injuries. During the absence, the animal hospital finds some way to continue functioning. Maybe the place runs even better. Voila! The boss discovers that the time really has come to fire the slacker he has tolerated far too long.

Whether it is because the clinic does fine without the employee while he is on comp leave, or because some temporary replacement does a much better job, the result is the same. The practice doesn't want the comp claimant-employee back at all.

The legal 'smell test'

The boss doesn't dispute the legitimacy of the person's workers' compensation claim. He doesn't begrudge the employee taking time off attributable to the injury. He just doesn't want the worker back. But now the employer faces what I refer to as a legal "smell test."

When that lazy worker comes back and discovers that he has been fired or replaced, the immediate assumption is that Doc is firing him because he made a workers' comp claim.

And let's face it: The circumstantial evidence of the nexus between the two is pretty darn persuasive. 1) No one ever told him that his job performance was poor to the point that his job was on the line. 2) He had never heard that there were layoffs coming or that business was slow and that someone might be getting the axe. 3) He figures: "What a raw deal! I am such a dedicated employee and so devoted to the clinic that I actually sustained a work-related injury for these people. And how am I thanked? They fire me!"

Even though the animal hospital didn't fire this poor performer as retribution for making a workers' compensation claim, it sure does smell like that. And that is the story the plaintiff's attorney will tell when the employee sues for wrongful discharge.

So what is the real law on this issue? In most states, the law actually revolves around that "smell test."

Limits to 'employment at will'

Most employees work at the whim of themselves and their employers. This is what is widely known as the "employment at will" doctrine. In principle, workers can quit and can be let go any time and for any reason. But there are certain limitations on this doctrine.

The limitations include contractual obligations, collective bargaining, statutory protections against discrimination by employers and a number of others, including this one:

Employers may not fire or threaten to fire an employee to discourage him from or punish him for making a claim under the workers' compensation law.

Take note: This limitation doesn't say that you can't fire someone who is taking advantage of their rights under the workers' compensation law. It doesn't say that you must keep employing a workers' compensation claimant indefinitely merely because the comp claim has been made. The law is that you can't fire anyone because they planned to or have availed themselves of their workers' compensation rights.

This is where the smell test comes in.

Imagine this scenario, which is the basic way that the workers' comp/firing problem unfolds: The animal hospital decides to bite the bullet and fire a poor employee during or right after he takes a workers' compensation leave. The workers' compensation case is pretty much unaffected; the worker gets his benefits and nobody disputes that he is entitled to them.

Yet the fired employee now seeks out a lawyer and pursues a civil claim against the clinic for illegal termination.

The claimant's attorney will allege that the firing was in retaliation and/or an effort to forestall future comp claims by this and other hospital staff members. The allegation is based on the fact that the loss of job and the compensation claim occurred almost simultaneously and therefore a causal relationship more than likely exists.

This leaves the veterinary clinic in the difficult position of attempting to prove a negative. "Yes, we kept the employee on staff for a long time, and yes we fired him as soon as he went on workers' comp. But, no, judge, the two had nothing to do with each other."

2 'to-do' lists

This legal threat, as with so many others, leaves us as veterinary practitioners with a "to-do" list. Actually two "to-do" lists, and they are as follows:

Steps to take if you already have an employee who has made a workers' compensation claim and you would like to let him or her go:

1. Recognize that there is a fairly good likelihood that a firing under such circumstances may lead to a lawsuit.

2. Decide whether to discharge the employee now or tolerate him or her long enough to establish a delay period between the end of the compensation leave and the loss of employment. This may make the possibility of a suit less likely. (If the employee is bad enough, it might not be worth it to wait.)

3. Evaluate other potential claims that employee also might bring in the event of such a lawsuit, including age discrimination.

4. Be prepared for the inevitable question if the matter is tried: Why did you wait so long to consider firing this person in the first place? Assemble whatever proof you may have to refute the plaintiff's claim.

Steps to take if you have an employee whose work really isn't good and could somehow end up on workers' comp at any time:

1. Warn the employee about poor work and document the warnings. Don't let them hear about a problem for the first time when they are let go.

2. If you feel that you may consider firing a worker, let them know in advance that discharge is a possibility. If they get warnings but never are made aware of the risk of job loss, an eventual comp claim may appear to be "the final straw." (The law doesn't permit you to consider workers'-compensation claims as any type of straw, ever.)

3. Don't permit wimpy supervision of employees. If you are considering letting someone go for bad work, don't claim that "business is down" or that they are performing OK but that the "practice is overstaffed." If you are unhappy with a worker, tell them so, (preferably in a documented performance review). This is exactly the evidence necessary to overcome the "smell test."

Keep in mind, too, that good worker evaluations and documentation are equally important in beating the "smell tests" associated with age, race, sexual harassment, family leave and disabilities-act cases as well.

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services to veterinarians. Call (607) 754-1510 or visit info@veterinarylaw.com