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What can I do about an employee who files a workers’ compensation claim?

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in Compensation and Benefits,Employment Law,Human Resources

Q. May I terminate an employee for filing a workers’ compensation claim?

A. No. Texas Labor Code Chapter 451 prohibits employers from discriminating or retaliating against an employee who has:

1. Made a claim for worker compensation in good faith

2. Hired a lawyer to represent him or her in a workers’ compensation claim

3. Initiated an administrative proceeding regarding a workers’ compensation claim

4. Testified or is about to testify in an administrative proceeding regarding a claim for workers’ compensation.

Courts examine several factors to determine whether discrimination or retaliation occurred:

  • Knowledge of the compensation claim by those making the decision on termination
  • Expression of a negative attitude towards the employee’s injured condition
  • Failure to adhere to established company policies
  • Discriminatory treatment in comparison to similarly situated employees
  • Evidence that the stated reason for the discharge was false.

Remember that employers covered by the FMLA (i.e., employers who employ 50 employees or more) or the ADA (those with 15 or more employees) must adhere to those laws’ requirements and the protections they confer on employees. An injured employee who cannot work and applies for workers’ compensation may fall under the FMLA’s and ADA’s protection.

So don’t act too quickly or rashly in taking action. Train supervisors and employees not to mistreat employees who make workers’ compensation claims. As a practical matter, you may want to designate the time that the employee is out as FMLA leave so the time off runs concurrently. Keep in mind, too, that an injury may constitute a temporary disability requiring reasonable accommodation under the ADA.

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