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Oct 11, 2017

Q&A: Termination after workplace injury may trigger workers’ comp retaliation claim

Q&ASafety and HealthTermination & ResignationWorkers’ Comp 

Question: One of our employees seriously injured his hand at work after just a couple of days on the job. Based on the nature of his injury, it seems obvious that he must have committed a safety violation. Can we fire him?

Answer: If you do, you’d better be absolutely certain of the safety violation and able to point to instances of other employees who were fired for similar violations even though they escaped injury. Otherwise, you risk a claim that you retaliated against the employee because of his on-the-job injury. You should also evaluate how an employee is treated after they report an on-the-job injury. When an employee is injured at work, are your managers more concerned about controlling the cost of a possible workers’ compensation claim rather than responding to the injury? Are your protocols set up to unfairly punish the injured worker instead of addressing the underlying cause of the incident that led to the injury? If a judge or jury heard the conversations that your managers were having following an on-the-job injury, would you feel confident about being able to defend a workers’ comp retaliation claim? Successfully defending this type of claim can often turn on the facts of the situation, so these are important questions to ask and valuable information to review with your managers.

In one recent case, text messages and emails exchanged between managers became an important piece of evidence in determining whether an employee’s workers’ comp retaliation claim should be dismissed. Although the case comes from an Oregon court, there are valuable lessons for Washington employers about what to avoid when it comes to workers’ comp retaliation. The text messages showed that managers were primarily concerned about the cost of lost time and how best to control the employee’s medical care in order to avoid negatively impacting the company. When those managers provided deposition testimony, they emphasized how costly the claim would be for the company and that insurance rates could go “sky high” following the employee’s injury. As a judge reviewed these text messages and testimony, it raised a serious question about whether the employee was fired for failing to follow safety rules, which is the reason the company put forward, or whether it was because of the cost of the workers’ compensation claim, which is what the employee was claiming. A jury will ultimately decide whether the employee was fired for getting injured on the job, but it will be a costly claim for the company to defend either way (Werner v. Sturgeon Electric Co., Inc., D Or, Aug. 2017).

While controlling costs and keeping insurance rates down is definitely an important business objective, employers need to be careful about how those priorities intersect with an injured worker’s legal rights. If managers are treating the injured worker like a walking dollar sign, rather than being sensitive to the treatment and care needed as a result of the injury, it could spell trouble for the company. Help them understand that the financial cost and business consequences should be kept separate from how the employee is treated or what employment actions are taken following the injury. Review our Legal Guide, “Retaliation Claims: How to Avoid Them” and talk with your Vigilant employment attorney about how best to position yourself to defend a workers’ comp retaliation claim. If you aren't a Vigilant member learn more about our flat fee employment law advice and Washington workers' comp program today.

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