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Careful approach needed to terminate injured employees

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Despite the mounting nonworkers compensation expenses racked up by injured employees who cannot return to work quickly-if ever, many employers will not terminate those workers.

Other employers will evaluate each worker's case individually and then decide who to terminate.

Neither approach is sound, and both could end up costing employers large sums, according to experts.

Paternalistic organizations will needlessly incur group health care and retirement plan expenses for injured workers who the employers have had to replace with productive employees who also must be paid benefits.

But too many employers that attempt to keep their costs in check by terminating employees with long-term disabling injuries risk costly lawsuits because of their faulty termination practices, according to attorneys and an arbitrator. Often, workers with occupational injuries will file lawsuits alleging they were terminated in retaliation for filing workers comp claims.

The termination policy that best protects an employer is one that applies to workers with nonoccupational as well as occupational injuries, is applied consistently, gives injured workers adequate time to recover and save their jobs, and complies with federal medical leave and disability laws, the experts say.

No legitimate workers comp claimant who is terminated would be at risk of losing their workers comp benefits, experts said.

Still, the topic is so sensitive for some risk managers that they will not publicly discuss what they consider sound termination polices. For example, one risk manager who refused to discuss his organization's policy said he also doubted many of his peers would disclose their policies, because "no one wants to have a target put on their back" for potential plaintiffs.

Their concerns may not be wholly unjustified, according to Merton E. Marks, a former employer attorney and now a Scottsdale, Ariz.-based arbitrator whose practice includes labor and employment cases.

For employers that question whether they can legally terminate an injured worker, "the short answer is, 'probably,"' Mr. Marks said.

Employer attorney Michael Rusin, of Rusin Maciorowski & Friedman Ltd. in Chicago, was more definitive. "There's no obligation to keep somebody employed just because they have a work-related injury. But, the law does vary from state to state," he said.

Even so, "can an employer place itself in jeopardy for doing so?" Mr. Marks said. "The answer is, 'probably."'

Other experts agreed but said employers can significantly mitigate that risk.

Employee attorney Glen Wieland of Wieland & Hilado P.A. in Orlando, Fla., agrees that employers in most states may terminate injured employees. The problems they typically face in taking that step are created by themselves, he said.

Before terminating an injured worker, employers first must consider the employee's employment arrangement, experts said.

So-called "at will" employees, whose employment status before their injuries was solely at the discretion of their employers, pose the fewest termination hurdles, experts said. But provisions in collective bargaining agreements covering unionized employees and in employment contracts with executives might limit employers' opportunities to terminate those employees when they are injured, experts said.

Taking into account such restrictions as well as any state workers comp statutes governing termination, employers should develop written termination policies that apply to employees with nonoccupational as well as occupational injuries, experts said.

"I'm not aware of anything that prohibits an employer from having a rule that says anyone who is out for six or 12 months will be deemed to have abandoned their job," said employer attorney Bennett Pine, a partner with Anderson Kill & Olick P.C. in New York.

Mr. Pine recommended giving injured workers at least six months to recover and reclaim their jobs, but he said a 12-month recovery period would more easily thwart retaliation allegations from workers comp claimants.

The problem with such policies is inconsistent application, Mr. Wieland said. "Risk managers sometimes get themselves in trouble because they don't use the same criteria case-to-case," he said.

At Greenville, S.C., a city disability committee sometimes will extend by a week or two the 12-week recovery period that injured workers have to return to their jobs, said Gloria Moody, risk manager and a disability committee member. Those exceptions are permissible under Greenville's human resource policy, which also outlines the city's 12-week recovery period for workers who are injured on or off the job, Ms. Moody said.

After 13 or 14 weeks, the injured worker must be able to handle at least a light-duty schedule and then must be able to return to full duty within another week or so, Ms. Moody said.

Mr. Wieland said employers that want to incorporate such flexibility into their policies should obtain "serious documentation" from the worker's physician before granting a recovery extension.

"The safest thing" employers could do in that situation is not to extend the recovery period but bring workers back on the job and pay them for that week or two they need to fully recover-even if they can only "sit in a chair or lie on a couch," Mr. Wieland said. That would be cheaper than defending a lawsuit alleging that the employer applied its policy inconsistently, he said.

Greenville's 12-week recovery period takes into account the unpaid leave that workers are guaranteed under the Family and Medical Leave Act.

Mr. Rusin said most employers do not have that aggressive of a termination policy. Instead, most employers establish a 26- or 52-week recovery period, because they do not want to terminate good employees who have a good chance of returning to their jobs after recovering, he said.

Other experts noted, however, that nothing prevents employers from later rehiring only some of the workers who were terminated because they could not return to their jobs within the recovery period.

Another federal law that employers must take into account is the Americans with Disabilities Act, the experts said. Under the ADA, employers must allow injured workers to return by the end of the organization's allowable recovery period if the workers can perform the essential functions of their jobs with reasonable accommodations by their employers.

If no reasonable accommodation is possible, however, the worker may be terminated, the experts said.

Employers can further shield themselves against lawsuits by terminated injured workers by documenting that the worker would have been fired for cause if he or she had not been injured, Mr. Marks said.

Mr. Marks said that "it's uncanny" how often poor workers are injured on the job shortly before they would have been terminated.