Can you fire someone who’s out for a work-related injury?

Many employers have wondered if they can fire an employee who is off work because of a work-related injury. The short answer is yes, but you’ll generally need to provide a legitimate reason for termination in order to avoid the appearance of retaliation. In many cases, you can even fire an employee for refusing a light duty offer.

Employees cannot be fired for reporting an injury or filing a workers’ compensation claim, but they can be fired for other valid reasons, even after reporting an injury or filing a claim. Most states allow you to fire an employee without giving a specific reason, but most employers won’t terminate someone without a reason.

However, laws that protect employees from discrimination or retaliation do not protect them from termination, if you have a valid reason. For example, an employee cannot be fired because of race, gender, or national origin. However, any employee could still be fired for reasons like theft, workplace violence, or violating company policies.

For an employee who engaged in protected activity (such as filing a workers’ compensation claim), you’ll need to show that any employee would have been fired in that situation, and the protected activity was not a consideration.

Refusing light duty

If a doctor releases an injured employee to work with restrictions, and you offer work within those restrictions, you can expect the employee to show up for work. In many cases, refusal to report for light duty can be treated the same as a refusing to work any other shift; the employee can be fired or told that refusal is considered job abandonment.

If the employee is protected under the Family and Medical Leave Act (FMLA), however, then termination is not an option. The FMLA can apply to a workers’ compensation injury, and the FMLA gives the employee a right to leave until he or she can return to the former position (not merely to a light duty position).

Of course, if an employee refuses a light duty offer, he or she might lose wage replacement benefits under workers’ compensation. However, the employee is still entitled to take unpaid FMLA leave until he or she can return to the same or equivalent job, or until the 12 weeks of FMLA leave are exhausted.

Even employees protected by the FMLA could be fired for valid reasons, such as theft or violations of company policies. However, any termination of a protected employee should proceed with caution, and employers should consider consulting with an employment law attorney about the situation.