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Can You Ever Discharge an Employee who has Suffered a Workers’ Comp Injury?


By John M. Letizia and Andrew A. Cohen, Letizia, Ambrose & Cohen, PC; lawyers@laclaw.com

 

This article is intended to provide general information only. It is not intended as legal advice or as a solution to an individual problem. You are encouraged to consult with appropriate legal counsel prior to relying on this document in whole or in part.

     One of the questions asked most frequently of our firm is also the focus of some very difficult lawsuits: "Can I discharge an employee who has been out on workers' compensation for more than six months?, twelve months?, two years?" We have drafted this article to provide employers with a general guideline of the laws they must consider when considering demotion, transfer or discharge of an employee who has been out of work due to a workers- compensation injury. Workers' compensation, Family and Medical Leave Act (FMLA), and disability discrimination laws significantly restrict and frequently prohibit employers from discharging injured employees. However, all is not lost -- there are many situations in which an employer may legally lay off or discharge an injured worker. But a careful review of these laws must be undertaken beforehand.

Connecticut Workers- Compensation Act - Light-Duty Work Requests
     The first law we must consider is the Connecticut Workers' Compensation Act (Act). An employer may not discharge or otherwise discriminate against an employee because the employee has filed a workers' compensation claim or is exercising rights under the Act. If light duty is available when an employee has suffered a compensable injury that disables the employee from performing his or her regular job, the employer must transfer the injured employee to a suitable light-duty position, if the employee is qualified and recovering from the injury. However, there is no requirement for the employer to convert a temporary, light-duty position into a regular, permanent position for the injured employee, nor does the employer have an obligation to create light-duty work. If the employee declines suitable light-duty work, that employee may lose the right to collect workers' compensation weekly wage benefits and may possibly be discharged if the employee has exhausted leave under FMLA.

Family and Medical Leave Obligations
     Second, employers must consider the FMLA requirements before discharging an injured employee. Generally, the FMLA allows employees that are eligible to take leave up to 12 weeks in any 12-month period (Connecticut allows 16 weeks in any 24-month period) for situations that include the serious health condition of the employee. The employee or the employer may exercise the right to have the absence designated as an FMLA leave while the employee is out of work due to a workers- compensation injury. If the injured employee is on leave under the FMLA, termination, transfer or demotion of that employee must be carefully scrutinized. An employer may not require the injured employee to accept light-duty work during the FMLA absence, even if the absence results from a work-related accident.

Americans With Disabilities Act (ADA) - Reasonable Accommodation Requests
     Third, and probably most importantly, a careful review of the broad requirements of the ADA must be performed. The ADA and similar Connecticut laws prohibit an employer from discriminating against a qualified individual with a disability, including a work-related disability. The employer is required to take affirmative steps to "reasonably accommodate" an injured employee with a known disability under the ADA and Connecticut laws. Although the employer is not expected to change the essential functions of the job, reasonable accommodation can include modifying or eliminating the nonessential duties of the employee's regular position.

     These laws do not require an employer to permanently employ a "disabled" employee who is unable to work because of a work-related accident. If the employee-s leave has been exhausted under the FMLA, and no suitable light-duty work is available, the employer may discharge the employee, according to the Act. Under the ADA, the reason for termination of a disabled employee must be verifiable and nonretaliatory. Furthermore, the employer must be unable to reasonably accommodate the injured employee. The following are usually considered legitimate and nonretaliatory reasons for discharging an employee: 1) the treating physician states that the employee is permanently unable to return to work; 2) the employee's regular position is eliminated as part of a company-wide downsizing; 3) the employee commits workers' compensation fraud; 4) the employee fails to report to suitable work upon release by his or her treating physician; or 5) the employee is unable to perform the essential functions of the job, with or without reasonable accommodation.

     An employee may file a claim against an employer for violating the laws mentioned above. If the employer discharged the employee under a "neutral" absence-control policy, it must be prepared to show that the policy was equally applied to all employees who were absent for a specific duration (usually 8 to 12 months), with limited exceptions for military leave and pregnancy-disability cases.

Conclusion
     The complex relationship among the Act, the ADA, the FMLA, and other Connecticut and federal employment and benefit laws governing workers' compensation injuries, is an area that has led to a dramatic increase in wrongful discharge and disability discrimination complaints and lawsuits against Connecticut employers. For those employers who need to address these situations, it is crucial to make certain that their specific employment actions with regard to injured employees comply with this increasingly complex and interwoven set of laws.

     If you have any questions or need further information with regards to this article, please do not hesitate to contact the above attorneys at Letizia, Ambrose & Cohen, One Church Street, New Haven, Connecticut 06510, telephone: (203) 787-7000, facsimile: (203) 787-7001, and e-mail: lawyers@laclaw.com