Q: Upon meeting with an employee to advise him that he was being terminated due to poor job performance, he informed me that he had injured his shoulder on the job some months earlier and would shortly be filing a workers' comp claim. The timing of this disclosure makes it highly suspicious. Can I ignore it and simply wait see what he does?
A: Although you may have good cause for being skeptical about the injury, you should not ignore it. Under the state workers' compensation law, a worker, including a formerly employed worker, has up to a year after the date of an injury to file a claim with the workers' compensation commission and up to three years from the date of the first manifestation of a symptom of an occupational disease.
A claimant might be questioned about the reason for delay, but legally the claim will be considered timely if filed within those deadlines. That doesn't mean it will be deemed work-related, just filed on time.
There is no need to delay your termination decision; however, there are some important steps you can take to protect your company's and your workers' compensation insurer's option to challenge the validity and severity of this potential work injury claim.
First, notify your workers' compensation insurer about your terminated employee's disclosure. Contractually, you have an obligation to promptly notify your insurer of any accidents or injuries that give rise to a claim, and the old proverb "forewarned is forearmed" was never more applicable than here.
Explain to your insurer the timing and circumstances of your employee's disclosure, any observations you may have about his past workers' comp claims experience, and any observations about his work performance that might indicate the presence or absence of an injury. Then ask how to proceed. Your employee's claim might never materialize, but if it does, you will have provided information that may be critical in properly administering the matter to a just resolution.
In a termination meeting such as the one described above, it would be entirely permissible: and helpful: to ask the employee several questions. For example, when, where, and how did his injury occur? Were there witnesses? Did he tell anyone else about the injury? Did he miss work or seek medical care? Why didn't he disclose the injury until now?
We recommend that companies adopt a policy requiring that all work injuries or accidents be reported to management as soon as possible, no matter how minor.
Such a policy should explain the rationale for requiring prompt reporting, including that (a) it is an important safety and security measure, (b) it will help the company provide immediate and appropriate medical care, (c) it will help the company verify that an accident or injury did in fact occur, and (d) it will enable the company to determine how the incident occurred, how it might be avoided in the future, and if any work conditions or procedures need to be modified to ensure employee safety.
A policy should also state that failure to promptly report an accident, injury, or close call is considered a safety violation subject to the company's disciplinary procedures.