W ' C :

WORKERS' COMP: HOW TO DISCIPLINE
OR TERMINATE CLAIMANTS WHILE
MINIMIZING YOUR LEGAL RISKS
PRESENTED BY:
ADELE ABRAMS
LAW OFFICE OF ADELE L. ABRAMS PC
THURSDAY, MAY 2, 2013
1:30 P.M. TO 3:00 P.M. EASTERN
12:30 P.M. TO 2:00 P.M. CENTRAL
11:30 A.M. TO 1:00 P.M. MOUNTAIN
10:30 A.M. TO 12:00 P.M. PACIFIC
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Workers' Comp: How to Discipline
or Terminate Claimants While
Minimizing Your Legal Risks
Presented by:
Adele Abrams
Law Office of Adele L. Abrams PC
May 2, 2013
Overview
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Employees may be protected by multiple statutes from
discrimination and/or retaliation on the basis of worker’s
compensation claims, articulating safety claims or
making complaints to the government
Often, OSHA/MSHA whistleblower claims can involve
individuals involved in past or current worker’s
compensation actions, which triggers dual protection
under state WC laws as well.
OSHA has new directive (3/12/12) declaring it a
“whistleblower” issue to have incentive or discipline
programs that target workers who report
injuries/illnesses.
WC Claims
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The employer may lawfully terminate an employee with a pending
workers’ comp claim if not retaliatory and based on misconduct
unrelated to WC claim
Some states recognize WC retaliation claims under public policy
exception to “at will” status
Most state workers’ compensation laws provide that it is unlawful for
employer to discharge or otherwise discriminate/retaliate against
worker for claiming worker’s comp or testifying at a comp hearing.
Claimant bears ultimate burden of persuasion in retaliatory
discharge claims.
Relevant inquiry is whether ER’s proffered reasons for termination
are credible or pretextual.
WC Basic Concepts
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Before workers’ compensation, employee injury payments were at
discretion of employer and, if litigation was brought, employee’s
recovery could be barred or substantially reduced if employee was
negligent (comparative or contributory negligence statutes)
Employer could evade responsibility if injury in workplace caused by
third party (e.g., a contractor)
However, if case proceeded to trial, compensatory and punitive
damages were possible …
Worker’s comp (WC) is intended to be a “no fault” system on both
sides
WC claimant who settles DOES NOT waive right to pursue litigation
under federal employment statutes: Title VII, ADA, FMLA, ADEA
unless expressly agreed to (see Passaic Beth Israel Hospital v.
Perez, 2008 WL 612308 (NJ App. Div. 2008)
Virtually all states now required employers to carry WC insurance
(ER size thresholds vary).
Features of WC System
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Systems include shared objectives:
… Prompt
… Prompt
payment of medical costs
and regular replacement of lost wages (partial
replacement)
… Reduced costs connected with tort litigation
… Incentives for employers to maintain safe workplaces
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Classification of awards: TP, TT, PP, PT
Non-employees may be covered under
company’s WC policy under “statutory employer”
and “borrowed employee” doctrines.
Features of WC System
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Injuries and illnesses must occur in the course of, and arising out of,
employment.
May include preexisting conditions—“take the employee as you find
him”
Occupational illness (e.g., silicosis, cancer) and ergonomic
conditions (carpal tunnel, MSDs, soft tissue injuries) are on the rise
in terms of accepted claims … even injuries under corporate
“wellness programs” may be covered!
Exclusions: intentional employee wrongdoing, horseplay,
aggressors in workplace violence, drug/alcohol impairment,
before/after work begins
…
Caution: if company denies WC claim successfully and terminates
worker, employee may try to seek tort damages or sue under different
theory (Title VII, ADA, FMLA, ADEA etc.)
WC Termination Claims
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Generally, employee has the burden to convince a judge or jury that
it was more likely than not that he/she was wrongfully terminated
because of WC claims
Employee does not have to prove that the workers' compensation
claim is the sole reason for the discharge but must show causal
relationship between protected activity and adverse action
Basic Test: Whether the employer's action is rooted substantially or
significantly in the employee’s exercise of rights under workers’
compensation laws
Temporal proximity is considered in assigning strength of correlation
of protected act to the adverse or disparate treatment
Although employer may counter by showing a legitimate, nonretaliatory reason for action, jurors can infer that retaliation was the
real reason and find employer’s explanation is pretextual
Interface of WC, ADA, FMLA
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Employers need to be aware of relationships between
workers’ compensation laws, the Americans With
Disabilities Act, and the Family and Medical Leave Act
(and state analogues)
May be overlapping benefits and coverage, and potential
for litigation for discrimination, retaliation claims.
The interface between state workers’ compensation
programs and employment laws such as the Americans
with Disabilities Act/Rehabilitation Act and the Family
and Medical Leave Act has been recognized as the
“treacherous triangle” of HR law.
Main distinctions are duration and type of
injury/illness/disability, whether work-related, and what
defenses are available.
WC, ADA & FMLA
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A WC claimant generally has a right to his job unless there is
medical evidence to prove he can no longer perform it (but can be
terminated consistent with disciplinary policies, layoffs, seniority
systems etc.)
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The Americans with Disabilities Act (ADA) protects qualified
applicants and employees with a disability who are able to perform
the essential functions of their job with or without a (reasonable)
accommodation
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The Family Medical Leave Act (FMLA) protects those who have
taken 12 weeks or less time off because of their own serious health
condition (in-patient hospital treatment, or under continuing care of
health care professional for 3+ days).
Comparison of Statutes
ADA
FMLA
Workers’ Compensation
No eligibility
requirements other
than being qualified
person with disability
or an individual
“regarded as”
disabled
- 50 or more employees at
worksite or within 75 miles
- Employee employed a total
of 12 months (need not be
consecutive), with at least
1,250 hours of service in 12
months before leave
No eligibility requirements under
than work-related injury or
illness (definition of “workrelatedness varies according to
state law)
Leave may be
required as
reasonable
accommodation for
the disability. Leave
may have to be paid
Leave required up to 12
weeks but may be unpaid.
State laws may offer more
liberal benefits Only the
maximum provided under the
most generous applicable law
Leave may be required if
employee is unable to work.
Worker who is injured gets
percentage of normal wages as
workers’ compensation benefit
15 or more employees 50 or more employees
Minimum number of employees
varies from 1-5 (state law)
What is “Adverse Action”?
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Refusal to hire, demotion, termination
Last chance agreements, PIP, suspension
Negative performance reviews
Transfer to less desirable job or location
Reduction in hours, pay, or opportunities for overtime
Bad references for former employee who was WC
claimant
Elimination of professional development opportunities or
other benefits (company car, cell phone, etc.)
Hostile acts, ostracism, reprimands, animus
“For Cause” Discipline
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The employer can proceed with disciplining an WC claimant if it can
show good cause:
… "a fair and honest cause or reason, regulated by good faith on
the part of the party exercising the power." Pugh v. See’s
Candies, Inc. (1981) 116 Cal. App. 3rd 311, 330, 171 Cal. Rptr.
917
Elements of Good Cause
„ Consider the business judgment of the employer, or the
fairness to the employee of the decision to discharge, while
giving substantial weight to managerial discretion.
„ Balance business efficiency and profitability against the
employee's maintaining his or her job.
„ It is critical that ER followsprogressive discipline system
precisely (avoiding harsher discipline or “skipping steps” for
WC claimants only).
Legitimate Discipline Triggers
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Failing drug/alcohol test (zero tolerance is OK as long as no
disparate treatment)
Inadequate job performance
Tardiness and/or absenteeism (watch out for FMLA)
Insubordination and/or disruptive behavior
Sexual and/or other harassment of fellow employees, customers,
others
Health and safety violations (watch out for OSHA whistleblower
issues)
Destruction of company or another employee’s property
Dishonesty or abuse of company policies
Misuse of time
Other illegal actions (theft, workplace violence etc.)
Retaliation Issues
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There can be no retaliation against employees for
exercising rights under ADA/Rehabilitation Act, the
FMLA or under state or federal workers’ compensation
laws
The statutory provisions of the ADA and FMLA
specifically prohibit reprisal and any such retaliation can
provide a separate count in litigation, in addition to any
underlying claim
If employer has followed AND documented normal
progressive disciplinary steps, and not singled out
disabled or injured worker in disparate manner, this can
rebut prima facie case
Complicated? You Bet!
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Violations may subject an employer to
prosecution for a single offense by multiple
agencies
… State
Workers’ Compensation Commission (WC)
… Equal Employment Opportunity Commission (ADA)
… U.S. Department of Labor’s Employment Standards
Administration (FMLA)
and municipal government agencies may also
be involved (e.g., if employer did not carry mandatory
WC insurance or misclassified employee as
contractor)!
… State
There’s more!
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Discriminatory action against an employer for safety and health related
activity may also lead to legal action under common law doctrines of
wrongful discharge, and retaliation against WC claimants can be an
additional count in ADA/FMLA litigation.
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Although the OSH Act creates an administrative procedure to investigate
employee discrimination complaints, some Courts have held that this
procedure is not the sole remedy available to employees. See Kilpatrick v.
Delaware County S.P.C.A., 632 F. Supp. 542 (E.D. Pa. 1986); Sorge v.
Wright's Knitwear Corporation, 832 F. Supp. 118 (E.D. Pa. 1993).
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This is because there is no “private right of action” under the OSH Act and
OSHA’s failure to prosecute was viewed as not waiving worker’s other tort rights
under common law.
Other courts, have held that there is no private cause of action under federal law
arising from a private employer's retaliatory discharge of an employee who has
filed a complaint or instituted a proceeding under or related to the OSH Act. See
George v. Aztec Rental Center, Inc., 763 F.2d 184 (5th Cir. 1985).
Termination – Exit Interviews
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Pre-termination interview of employee with a signed statement may
be wise (remember, cannot force signature and there may be ADEA
issues)
If new factual allegations are raised, the employer should consider
investigating them
No attempt should be made to dissuade or disqualify the employee
from company benefits or unemployment insurance except where
extreme circumstances
Continuation of health benefits/COBRA rights should be confirmed
in writing
Make sure all wages have been paid including commissions, as well
as accrued unused vacation to avoid FLSA and state wage law
claims
Confirm policy regarding references - a neutral letter or identified
reference contact can help in avoiding misstatements by supervisors
to prospective employer.
Defense Exhibits – Wrongful
Termination Claims
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Employee handbook (progressive discipline system enforced)
Performance evaluations
Letters of reprimand or other written warnings
Affidavits or statements from supervisors or coworkers concerning
conduct that is basis for discipline or termination
Previous disciplinary records against other workers who do not fall
within protected classification
Employer’s written anti-retaliation policy
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NOTE: Anti-retaliation policy should have complaint mechanism to limit
possibility of retaliation by direct supervisor
Documentation of in-house investigation of any retaliation
complaints
Solutions …
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Train management and other employees with respect to workers’
compensation procedures, rights and responsibilities
Enforce a policy preventing retaliation against workers who file
claims (and create a solid paper trail if it is necessary to discipline a
worker who has engaged in protected activity by filing a
compensation claim)
Ensure proper coordination of the various statutes that protect
workers’ rights
Conduct thorough accident investigations and controvert “bogus”
claims
Utilize vocational rehabilitation services and implement vigorous
return-to-work programs
Accommodate disabilities where feasible
Implement return-to-work policies for WC claimants consistent with
doctor’s recommendations/restrictions
Have job descriptions to clarify what are worker’s “essential job
functions” for purposes of light duty and also ADA analyses.
Tips for HR and ESH Professionals
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Safety and human relations professionals should be familiar with all
requirements.
Consult counsel where appropriate when considering requests for
accommodation, workers’ compensation, leave associated with
medical treatment, and reinstatement following an absence.
Exercise caution when developing a light or restricted duty job
program for injured workers so as not to create “new job” for ADA
purposes.
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Remember that injured workers who are angry at employer are most
likely to file complaints with OSHA and MSHA (either for safety
violations or discrimination actions under Sec.105(c) or 11(c))
Tips …
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Regardless of which statute a claim arises under,
employers must be prepared to manage claims
intelligently . . .
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No employer should attempt to hinder any investigation of a WC,
safety, health, or environmental complaint or prevent
management employees from talking with compliance officers or
investigators.
Managers must know the law AND know their rights.
The correction of any unsafe or unhealthy condition (or
environmental hazard) must be a priority at any workplace.
All employee complaints must be investigated thoroughly – even
the chronic complainer or current/former WC claimant may have
a legitimate gripe!
Tips …
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Any disciplinary action should be taken with at least one other
management official present (a witness and credibility verifier).
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In union environment, worker will have Weingarten rights for any meetings that
may result in issuance of disciplinary action!
Employees cannot use WC laws to protect themselves from improper
conduct (conduct for which they would have been disciplined in any
event).
A documented record of disciplinary action should be kept to
demonstrate the legitimate (non-safety or WC-related) basis of
employer’s decisions.
Managers must be able to readily (and quickly) distinguish between
protected and unprotected activity.
Understand which laws apply to which workers (and which workers may
be covered by multiple laws – e.g., WC statutes, ADA and OSH Act).
Remember …
Discipline can be imposed on “protected”
worker for absences, poor performance,
but same standards must be applied to all
„ No departures from employer’s normal
practices and policies
„ If conduct was tolerated prior to WC claim,
OSHA complaint, or FMLA/ADA action,
subsequent discipline will seem retaliatory
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Conclusion
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Supervisory personnel should keep confidential those problems
experienced with difficult employees on the job who are/have
been WC claimants. Unnecessary discussion may serve as
admissions against interest in later proceedings.
Should a matter proceed to litigation, tactical decisions must be
made quickly. The cost/benefit of litigating should be weighed at
the outset.
If mistakes were made, acknowledge these problems early with
company counsel in order that appropriate decisions can be
made concerning litigation and settlement.
Although you cannot prevent discrimination claims from being
filed, effective training and communication – as well as use of
common sense – will held reduce the number of sustainable
claims!
Questions?
Adele L. Abrams, Esq., CMSP
301-595-3520
safetylawyer@aol.com
Disclaimers
*This webinar is designed to provide accurate and
authoritative information about the subject matter
covered. It is sold with the understanding that the
publisher is not engaged in rendering legal, accounting, or
other professional services.
*This webinar provides general information only and does
not constitute legal advice. No attorney-client relationship
has been created. If legal advice or other expert
assistance is required, the services of a competent
professional should be sought. We recommend that you
consult with qualified local counsel familiar with your
specific situation before taking any action.
Speaker Biography
ADELE ABRAMS
ADELE ABRAMS, ESQ., CMSP, IS AN
ATTORNEY AND SAFETY PROFESSIONAL
WHO IS RECOGNIZED AS A NATIONAL
EXPERT ON OCCUPATIONAL SAFETY
AND HEALTH. SHE HEADS A NINEATTORNEY FIRM THAT REPRESENTS
EMPLOYERS AND CONTRACTORS
NATIONWIDE IN OSHA AND MSHA
LITIGATION, AND PROVIDES SAFETY AND
HEALTH TRAINING, AUDITING, AND CONSULTATION SERVICES.
SHE IS ALSO ON THE ADJUNCT FACULTY OF CATHOLIC
UNIVERSITY, WHERE SHE INSTRUCTS ON EMPLOYMENT AND
LABOR LAW. SHE IS A CERTIFIED MINE SAFETY PROFESSIONAL,
AND A DEPARTMENT OF LABOR–APPROVED TRAINER. SHE IS
ALSO A PROFESSIONAL MEMBER OF THE AMERICAN SOCIETY
OF SAFETY ENGINEERS, AND IS CO-AUTHOR OF SEVERAL
SAFETY-RELATED TEXTBOOKS. SHE IS CHAIR OF THE NATIONAL
SAFETY COUNCIL’S BUSINESS & INDUSTRY DIVISION
COMMITTEE ON REGULATORY AND LEGAL AFFAIRS. SHE IS
ADMITTED TO THE BARS OF MD, DC AND PA, AS WELL AS
MULTIPLE FEDERAL COURTS INCLUDING THE US SUPREME
COURT.