Can an employer discipline or terminate an employee who has an open workers’ compensation claim? This is a common question that many employers ask. The answer depends on which state the company is located in, 雇员被纪律处分或解雇的原因及工伤赔偿申索的性质. Let’s look at an example.

假设一个员工不服从他们的主管，这个问题已经发生了不止一次. 当员工受到谴责时，他们继续违反公司的政策或程序. However, the employee has an open workers’ compensation claim from an occupational injury. As a result, 雇主可能会质疑他们是否可以继续惩罚或解雇行为不良的员工.

回顾这篇文章，了解更多美高美集团4688雇主何时可以通过公开的工人赔偿要求来惩罚或解雇员工的信息.

What Is an Open Workers’ Compensation Claim?

In general, 公开的工人赔偿索赔可能意味着工伤或职业病目前正在接受治疗, benefits are still being paid, rehabilitation is in process or the employee has not yet reached maximum medical improvement.

Workers’ compensation claims can stay open for several years, 这取决于受伤或疾病的严重程度以及疾病的治疗方法.  

If an employee’s claim is still open, this generally means that the claim is still active in the workers’ compensation system.

When Can an Employer Discipline or Terminate?

而雇主不能因为雇员提出工伤赔偿要求而对其进行报复, 这并不意味着他们不能惩罚或解雇有公开索赔的员工. There are various reasons as to why an employer could discipline or terminate an employee. For example, 在下列情况下，雇主可能被允许以公开的工人赔偿要求处分或解雇雇员:

• After obtaining permanent restrictions, the employee can no longer complete the job tasks that were initially assigned to them.
• Company-wide layoffs are necessary.
• Leading up to their injury or illness, the employee had poor work performance, and this issue was properly documented.

However, 重要的是要记住，雇主必须有详细的文件，并对所有员工的做法保持一致. In addition, 雇主在处罚或解雇员工时必须确保他们没有违反任何其他法律. After all, just because there is no issue with workers’ compensation laws, 这是否意味着不会有任何与残疾法规或其他公平就业标准相关的合规问题.

Documentation Is Key

In most states, 因为员工提出工人赔偿要求而惩罚或解雇员工是违法的. This is considered retaliation, and employees are protected from this practice under workers’ compensation laws. By terminating an employee for filing a workers’ compensation claim, an employer could open themselves up to serious litigation issues. 雇主最终可能会为报复索赔支付巨额补偿金和惩罚性损害赔偿.

But what happens when an employee’s behavior or attitude creates work performance issues? For example, an employee may fail to complete assigned work within the required time, 不服从上级或上班迟到——这样就会表现出糟糕的工作表现. As soon as these issues occur, the employer should start documenting them. This provides a foundation for the employer, 帮助他们证明纪律处分或解雇是正当的——即使员工有公开的工人赔偿要求.

However, 假设雇主在雇员提出工伤赔偿要求后才开始记录问题, even though the behavior had already been occurring before the claim happened. In that case, 这种行为似乎只是因为工人的赔偿要求才成为一个问题.

如果员工的表现问题是在受伤或生病后开始的，并且在公开的工人赔偿索赔期间, it should be noted in the employee’s personnel file with detailed notes. From there, the employer should complete a full investigation into what occurred. This way, 如果雇员在公开索赔过程中因受到纪律处分或被解雇而对雇主提起诉讼，雇主将有足够的文件.

Employers should also be consistent in their disciplinary and termination practices. If there’s no consistency, discrimination or wrongful termination claims could arise against the employer. 重要的是，当雇主考虑是否处罚或解雇员工时，他们必须遵循以下措施:

• Document the employee’s misconduct.
• Thoroughly investigate the misconduct.
• Obtain witness statements (if applicable).
• Record any disciplinary actions that the employee received, or provide reasons as to why no discipline was required.
• 记录员工离职的原因(包括任何有关试用期的文件).

用非常详细的笔记记录情况可以帮助雇主保护自己免受任何可能发生的错误解雇或歧视索赔.

Is it Retaliation?

雇主对公开提出工人赔偿要求的雇员采取的可能被视为非法报复的行动包括:

• Changing the employee’s job tasks, even though the employee is still able to perform them
• Changing the employee’s work schedule
• Demoting the employee
• Reducing the employee’s hours

If an employer is deemed to have wrongfully retaliated against an employee, they can be liable for various penalties, such as fines or—in severe cases—jail time.

What Happens to the Workers’ Compensation Claim if the Employee Is Terminated?

If an employee who has an open workers’ compensation claim is terminated, the claim will continue to stay open. 雇主仍将负责雇员的工伤或疾病的保险-除非保险公司, a state agency or a court determines otherwise.

It is usually in an employer's best interest to keep an employee who has an open claim working. Doing so allows the employer to directly communicate with the employee, 密切监测员工的医疗进度，并对员工在康复过程中所做的工作有更多的了解.

Employees who have been terminated, on the other hand, 往往很难接触到，这使得雇主跟进他们的任务变得更加复杂. What’s more, 雇主不能像直接接触继续工作的雇员那样直接接触被解雇的雇员. 这种访问可以帮助监控员工的康复过程，并让员工对遵守适当的医疗限制负责. If an employee is terminated and then hired by another company, it will become extremely difficult to make sure the employee follows their restrictions.

In any case, employers need to weigh the pros and cons of termination versus keeping an employee working. For instance, 不解雇不服从的员工，仅仅因为他们有公开的工人赔偿要求，可能最终比雇主可能面临的任何潜在的报复索赔更昂贵. Each situation is different, 但雇主在决定何种情况或员工的行为可能导致解雇时，应始终牢记，一致性是关键.

Contact us today with any questions about workers’ compensation insurance.

本报告并非详尽无遗，任何讨论或意见也不应被视为法律建议. Readers should contact legal counsel or an insurance professional for appropriate advice. © 2021 Zywave, Inc. All rights reserved.