Terminating an Employee on Workers’ Compensation

Steven Cesare, Ph.D.

A business owner from Pennsylvania contacted me the other day to complain about the job performance of an employee who was previously on workers’ compensation leave and was now back to work on modified duty. The employee was injured in a job-related incident that left him with a sprained ankle, knee, and back. Per company policy, the injured employee was escorted to the local MPN clinic for a physical assessment. That assessment suggested one month off from work as part of a physical therapy regimen, followed by extended modified duty, premised on various work restrictions which included not standing more than 45 minutes per hour and not lifting more than 15 pounds. Bi-weekly follow-up visits at the clinic were scheduled to track the employee’s rehabilitation status.

Prior to the injury, the employee was a subpar performer, characterized by consistent failure to achieve daily and weekly goals as a Chemical Applicator, frequent absenteeism and tardiness, and the often-cited “poor attitude.” Despite those indices, the company chose to keep the employee rather than dismiss him due to ineffective performance, because it did not want to pay unemployment insurance.

While on restricted duty operating a ride-along mower, as approved by the clinic, the employee continued his poor performance (e.g., incorrect mowing patterns, severe rutting, damaged equipment). Fearing the dreaded retaliation claim, the owner remained patient for the first couple of weeks of modified duty. Things only got worse, and he finally called me.

First, I told the owner that as long as the employee was on restricted duty, he was nearly untouchable sans a major policy violation (e.g., sexual harassment, safety, workplace violence, criminal activity), in that any such personnel action would likely be attributed to retaliation. Next, I instructed the owner to keep the workers’ compensation vendor apprised of all current performance issues. In the same breath, I reminded the owner to review the company EPLI policy with the insurance representative to ensure legal compliance. Then, I suggested that the owner and employee’s supervisor have weekly meetings with the employee to discuss performance goals for the week, his physical well-being, and then an evaluation of the employee’s weekly job performance each Friday. All documentation was carefully crafted, delivered, and naturally, signed by the employee, and ultimately sent to the workers’ compensation vendor and EPLI representative.

Eventually, per company policy, upon written release from the MPN clinic, the employee was required to complete a fitness for duty examination prior to returning to work. The examination and written doctor’s note yielded a full return to work statement without any restrictions.

Upon return to his Chemical Applicator position, the employee’s performance continued to be below standard. The weekly communication sessions continued during his transition from mowing to spraying to ensure no physical relapse occurred. Similarly, the weekly performance evaluations remained in place.

After a month of documented ineffectiveness, ongoing communication, and periodic absenteeism, it was time for a decision to be made. Proceeding carefully, the details of this issue were resolutely scrutinized and it was determined that termination was the solution. As a predicate, based on facts, it was shown that:

The termination was not be applied in any retaliatory manner,
The termination was based solely on his inability to complete the essential functions of his job as a Chemical Applicator, unrelated to the workers’ compensation claim, and
The termination was not associated with any protected class status.

Given the high stakes involved in terminating in these circumstances, it’s in the company’s best interest to have a rigorous protocol in place to avoid violating any state or federal law (e.g., FMLA, ADA, WC, EEO).

If you have any questions or comments about this topic or anything else related to human resources, simply call me at (760) 685-3800.