I advise Washington employers A LOT about discipline and terminations. One of my recent calls went like this: “Hi, we have a two-year employee who has horrible attendance and a bad attitude. No one likes working with her. She always complains about anxiety, and last week she was a no-call, no-show. When we got a hold of her, she said she fell at the end of her shift and has to be off for two weeks. We know she’s lying. There were no witnesses. She didn’t tell anyone about the accident, and she already had a workers’ comp claim earlier this year. Can we terminate her before she comes back and really gets injured?”
Seems like an easy termination, right? Unfortunately, this situation highlights three common mistakes that can expose you to a lawsuit.
1. It smells like retaliation.
Workers’ compensation retaliation is pretty much what you think it is: you can’t fire or chop the pay of an employee who files a claim or tells you that they intend to file a claim (read the Washington law here). The only way to dodge a retaliation claim is to show that the reasons for termination are entirely separate from the alleged on-the-job injury. This is when I usually ask the employer for documentation of performance issues. If the supervisor in the scenario above didn’t take any notes about the attitude problems, attendance issues, or unfiled incident reports, then it becomes almost impossible for the company to prove the termination is not retaliatory. Losing a retaliation claim means job reinstatement and/or backpay, not to mention attorney fees.
The solution. Ensure that all attendance, performance, and behavior issues are objectively and specifically documented by supervisors at the time of incident. Don’t wait around until after a workers’ compensation claim has been filed. If this is a weak spot in your company, provide your supervisors documentation training, then make quality documentation a job expectation.
2. Didn’t run FMLA (or other protected leaves).
Employers frequently get workers’ compensation tunnel vision: “My employee is already off work collecting time loss, why would I need to give them anything else?” There are several reasons to consider all applicable leave laws for your injured employee, including the federal Family and Medical Leave Act (FMLA). If you’re an FMLA covered employer –generally if you have 50 or more employees—your employee with a serious health condition gets 12 weeks of job-protected, benefits-protected, unpaid leave. If the injured employee in the scenario above was in the hospital overnight or missed three days of work and is being treated by a doctor, then very likely FMLA should be running concurrently with workers’ comp. (Click here to read about a recent case on this very issue.) If she’s eligible but the company forget to run FMLA, not only does her protected 12-week bank stay full (and available for later use), the company may also be on the hook for non-injury related medical bills and COBRA penalties; most insurance plans won’t cover employees on extended leave unless FMLA is running. If she’s eligible for FMLA but is fired, she could sue the company for FMLA interference.
The solution. Have a designated, trained leave administrator who reviews workers’ comp absences for potential protected leaves. If you’re a Vigilant member, you can use this chart to develop a checklist of federal and Washington leave laws that should be considered.
3. Forgot about disability laws.
Another blind spot for employers managing a workers’ comp claim are state and federal disability protections. The Washington Law Against Discrimination (WLAD) and the Americans With Disabilities Act (ADA) require employers to reasonably accommodate known disabilities—mental or physical impairments that substantially interfere with major life activities. (And, by the way, Washington considers temporary conditions, like a broken leg, a disability.) This issue often shows up when a claim closes or the employee returns with restrictions. Suddenly the employer wants to let the employee go for not being able to do their job. If the restrictions equate to a disability, the employer’s obligated to engage in the interactive process or risk a disability discrimination claim. The red flag in the scenario above (“she always complains about anxiety”) is a possible missed disability accommodation request. If a mental health disability was ignored, even if unintentionally, the employer might be looking down the barrel of a discrimination lawsuit.
The solution. Train your supervisors to spot accommodation requests and immediately involve HR. If there is a request (e.g., “I need another week off”) or a known restriction, then review the situation with your attorney to see if disability laws apply.
This is exactly what Vigilant Law Group attorneys provide: proactive counsel on sticky workers’ compensation, leave management, and termination questions. If you’re in Vigilant’s Retro group or we are managing your workers’ comp claims outside of group participation, we work closely with your Vigilant claims manager and safety professional to help you avoid the mistakes so you can safely (and legally) get your injured employees back to work.