If you know an employee has previously been injured at work and collected a workers’ compensation settlement, you may consider transferring him for fear he’ll hurt himself again. Resist that temptation.
Taking any kind of adverse employment action could be construed as discrimination based on disability or perceived disability.
Recent case: Anthony hurt himself while working at a retail store. He was off work for three months, had surgery, collected workers’ compensation and eventually settled that claim for a lump sum. His doctors rated him as having a 17% permanent impairment.
Anthony then applied for a job in a warehouse, where he sometimes operated a forklift. He didn’t disclose his past injury on his application and was doing a good job. Then a supervisor found out about the past injury and asked HR if he could terminate Anthony, who was still on probation. An email exchange specifically mentioned the supervisor’s fear that Anthony would hurt himself again.
The warehouse company did fire Anthony, who sued, alleging ADA discrimination.
The court said he had a case based on the email evidence that the main reason he was terminated had to do with his past injury, not any concerns about current performance. (Pillay, et al., v. Millard Refrigerated Services, No. 09-CV-5725, ND IL, 2012)
Final note: The supervisor presumed that since Anthony was an at-will employee, he could fire him for any reason. That’s not true—it’s any legal reason.
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