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What should we do? Client asked us not to assign employee who is now out on workers’ comp

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in Firing,Human Resources

Q. Our company provides services to nursing homes. One of our therapists recently went out on wor­k­­ers’ compensation leave. The facility where she worked has since asked us not to reassign the employee back to its facility. However, we don’t have other placement options for this worker. Do we have any options?

A. The primary concern here is the possibility of a workers’ compensation retaliation lawsuit. It is illegal in almost every state, including California, to retaliate against someone who pursues workers’ comp benefits. Specifically, it is unlawful to discharge or in any way discriminate against an employee for filing a workers’ compensation claim.

Generally, to succeed on such a claim, an employee would have to show that the employer took an adverse action as a result of the filing. Thus, in these situations, employers would have to have a legitimate reason for taking an adverse action against the employee.

Employers may still legitimately terminate employees, regardless of their workers’ comp, as long as the termination wasn’t a pretext for retaliation.

While you may have a legitimate reason to take action based on your employee’s performance with your customer, it would be prudent to ensure that the performance problems have nothing to do with the fact that she filed a workers’ compensation claim.

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