Managing Member Alan G. Brackett and Associate Ava Wolf are co-authors of the “Attorney Analysis” column for Reuters Legal News. Their most recent article on a workers’ compensation topic, “Return to work concerns with injured workers,” was published on December 21, 2022. Following is an excerpt from the article, which you can continue reading on Reuters Legal News. You can also download a PDF of the entire article at the link below.
Return to work concerns with injured workers
The objective of every workers’ compensation law is to provide an injured worker with wage replacement and medical care so that hopefully, following the necessary course of treatment, they can return to their job of injury. But what happens when an employer no longer wants the employee on its payroll? Or what happens when the employee will never be able to return to work to their position with employer because of work restrictions or a permanent disability? Can the employer terminate the employee or request a voluntary resignation?
There are many reasons why an employer may not want to continue the employment relationship with an injured worker. Workers’ compensation schemes are by their nature “non-fault,” meaning the cause of injury is immaterial to the entitlement to benefits. A worker injured by their own negligence is still entitled to statutory benefits, and a negligent employer is protected from a damages suit, regardless of its actions causing the injury (unless there is an intentional act or gross negligence, but that’s a topic for another article).
An employer may not want to return a worker to its payroll if the employee’s negligence was egregious and makes that person a risk to themselves or others in the workforce. An employer may suspect but is unable to prove substance use at work that caused the accident, or horseplay, or any other inappropriate behavior. The employer may simply not want an injured employee who poses an increased risk of a future injury to return to its payroll. Whatever the reason, employers must be very cautious in how they treat an injured worker who in most states, has significant protections against injury related employment action.