HOW LONG DO I HAVE TO WAIT?

Steven Cesare, Ph.D.

A frustrated business owner from North Carolina called me the other day to talk about a troublesome employee scheduled to return from her lengthy workers compensation leave of absence, in the next couple of days. The employee has been a gadfly to the company, co-workers, and owner for over a year. This employee has been an under-performer, an emphatic dissident against the company culture, and a constant complainer about myriad work criteria including long hours, strenuous physical labor, and low pay.

“Yes.” Of course, I asked the business owner why he did not terminate her before she was injured on the job. Responsively, like most idealistic, albeit naïve business owners in the green industry, the Tar Heel hoped she would improve, lamenting verbally that he did not want to go through a lengthy staffing process.

Silly.

Be a capitalist and rid your company of under-performing assets quickly.

Today.

In any event, several months ago, the female employee complained of an elbow injury that led to a workers compensation claim. Dutifully, the company administered its injury reporting protocol, culminating in the employee being away from work for six months, replete with multiple extensions due to “lingering pain.” With each complaint, the occupational clinic physician granted more time off to the injured employee.

Eventually, the injured employee reported a pain-free existence and informed the business owner of her desire to return to work. Per company policy, the employee completed the required fitness-for-duty exam at the occupational clinic, with results revealing no work restrictions, limitations, or accommodations.

Upon receiving the results from the occupational clinic, the business owner called me and said, “Now that she has been cleared to return to work, when I can fire her!” Fearing the employee’s inevitable workers compensation retaliation claim, I tried to calm the business owner’s fervor for her immediate termination.

Resistant to my counsel, the owner amplified his message, tone, and intent by repeating he did not want her to work at his company. I remained steadfast by informing him that any rash personnel action would assuredly lead to litigation and that his optimal course of action was to welcome her back to the company, track her work performance, and not single her out for any questionable performance management issue.

He shifted gears again: “How long do I have to wait before I can fire her, Steve!” That is a loaded question with no easy answer, often determined by state law, individual case considerations, and attorney avarice. That point being said, I have been told by attorneys, EPLI vendors, and Human Resources professionals, who would never admit their statements on the record, that at least six to nine months typically must pass before an attribution of retaliation for a workers compensation injury can begin to wane.

Just to be clear: That time frame is not an answer. It is merely a general guide to consider.

There is no definitive legal standard of when it is “safe” to terminate an employee returning from a workers compensation injury. There are too many variables to consider. However, if an employee committed a major policy violation (e.g., harassment, safety, drugs), per company policy, that employee could and should be terminated immediately.

I admonished the owner to not invoke a salient or tacit vendetta against her, through micromanagement or scrupulous examination in that such action would be contrasted against other employee scenarios, as part of her anticipated lawsuit. Going forward, I reminded him to treat her as he would treat any other employee.

I also reminded him to constantly evaluate all his company assets (e.g., staff, equipment, tools, vehicles) and take immediate action when any of them are under-performing relative to company business goals.

Today.

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