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Can you fire an employee while they are out on a workers' comp claim?


Can you fire someone while they are out on a Workers’ Comp claim?  Yes….but be careful and cross all your t’s and dot all your i’s before you do!

You can terminate a workers’ comp claimant as long as they are not protected by any other laws.  So before moving forward with the termination you must determine the following:

                Is the claimant protected under the Family and Medical Leave Act?

                Is the claimant covered under the ADA laws?

                Is the claimant being terminated for any other discriminatory reason?

Now, once you’ve covered all those points you still need to assess the consequences of the termination.

Negative Consequences can include the possibility that a Workers’ comp Commissioner might be more sympathetic toward an unemployed claimant and/or the length a claimant is out of work may exceed the norm due to the fact that they don’t have a job to return to.

Conversely, the positive side is you may be able to terminate a poor-performer/problem employee.

construction risk advisorsRemember, the most important thing is documentation, documentation, documentation!  If you are terminating any employee, claimant or otherwise, make sure you have written records of poor performance evaluations and conversations, documents of attendance abuse, etc.  And we highly recommend you contact your lawyer prior to issuing that termination!


Great topic but the real answer is you've got to tell employees on first day of employment what the rules are while they're out on workers comp. I had a guy that disappeared & wouldn't return calls, so I wanted to fire him. You bet I added a set of rules that said they have to call in with following information weekly, or they're fired. Of course lovely AIG was slow to respond and paid him for a month after doctor sent him back to work but I never saw him. I simply didn't have time to follow him to find/meet with his new employer ... the lessons we learn the hard way!
Posted @ Thursday, July 28, 2011 4:10 PM by tinagleisner
Excellent comment! The more you advise employees up front the easier your life can be! 
Posted @ Monday, August 01, 2011 8:11 AM by Debbi Kuhne
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