Most of you have been involved in, and perhaps grimaced about, a workers comp situation. Many of these work out, allowing the employee to seek necessary medical treatment and return to work.

However, claims of retaliatory discharge are on the rise. These are claims by former employees that they were wrongfully discharged due to some involvement with their rights under Oklahoma’s workers compensation act.

So, adding to your list of things to worry about, before you discharge an employee, remember to assess your risks for a lawsuit claiming that the discharge was in retaliation for rights under our workers comp laws.

Motives matter.

Under our law, an employer cannot discharge an employee who has in good faith:

1. Filed a claim;
2. Retained a lawyer for representation regarding a claim;
3. Instituted or caused to be instituted any proceeding under the workers compensation act;
4. Testified or is about to testify in any proceeding under the workers compensation act; or
5. Elected to participate or not to participate in a certified workplace medical plan as provided in the workers compensation act.

As interpreted by courts, the third point (“instituted or caused to be instituted any proceeding”) includes the employee seeking medical treatment for an on-the-job injury.

The law also says that an employer may not terminate the employee’s group health insurance for any of these reasons, but you may terminate insurance if the employee fails to pay his or her share of the premiums. (Please be sure your paperwork is in order before you cancel any person’s group health insurance.)

For each of these claims, the question of whether you violated the law turns on your motives. If you were motivated by any of these 5 points, you have violated the law. If you have a legitimate, non-retaliatory reason, you have not. Of course, it is often up to juries to determine the legitimacy of your reason, so give it some thought and make sure your ducks are in a row.

Sometimes, your motives are irrelevant.

There is another provision in the law under which your motives are irrelevant.

You may not discharge an employee during a period of temporary total disability solely on the basis of absence from work.

If an employee is on temporary total disability (often referred to as “TTD”), the employee is temporarily medically unable to perform his job. This is the time when the employee is (generally) receiving medical treatment but has not yet reached maximum medical improvement. The problem is that sometimes employees are TTD for months and even years. During this TTD period, you cannot discharge the employee simply because he is absent from work. If you have a situation like this, please coordinate with your comp carrier to ensure the employee is working through his medical treatment as quickly as practicable.

Bottom line, if you want to discharge an employee who is TTD, you had better have a solid and extraordinary reason, well beyond “he wasn’t a good employee to start with.” Reasons that come to mind might include discovering embezzlement or stealing by the employee, workplace violence, etc.

Is there any good news, you ask.

Yes . . . a little. The law does state that you do not have to keep employed a person who, after TTD has ended, “is determined to be physically unable to perform assigned duties.”

However, remember, if you are covered by the Americans with Disabilities Act, you may have a legal requirement to assess whether the employee’s limitations could be reasonably accommodated. And, if you are an employer covered by the Family and Medical Leave Act, the employee may have rights to additional protected leave.

Bottom line. When you are considering discharging an employee, if that employee has had an on-the-job injury (even if you dispute it), proceed cautiously. As we have discussed on many occasions, dealing with employees’ medical issues remains one of the biggest challenges facing all employers.

By Kristen L. Brightmire, kbrightmire@dsda.com