Can I be sued for terminating and employee on workers comp?

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Can I be sued for terminating and employee on workers comp?

The employee has been on workers comp for 2 months and claims that it will be atleast another month before she is able to come back to work. My current employees have been covering her shifts but the are getting worn out. I am in the state of Texas and would like to hire somone to replace her but I fear a lawsuit. She states that even when she does come back that she will not be able to resume her full duties.

Asked on June 26, 2012 under Employment Labor Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Several years ago, Texas implemented a series of reforms which really limited the rights and remedies of employees injured on the job in Texas.  They can't sue for punitive damages or pain and suffering like a normal injured plaintiff can.  The flip side of the limited financial exposure, is that the laws regarding workers comp are expected to be honored by employers.  If you fire someone because they filed a workers comp claim, then you could be sued for workers comp retaliation-- which can result in a larger damages for the employee.  You really need a worker's comp program.  If you have return to work policies, it will help reduce retaliation lawsuits.  For example, this employee is saying that she cannot resume her full duties.  If she can't resume these duties, you would incorporate an ADA request form.  If you cannot reasonably accomodate the request, then you could severe her employment.  If you can make accomodations, then you should.  To deal with what you have going on right now, take all of the documentation (from injury to medical updates) to a workers comp attorney.  Her paperwork may indicate some other things that you can do to bring her back on light duty right now.  If she refuses light duty even when the doctor is saying she is okay for light duty, then it could be considered job abandonment-- which you can terminate for without a retaliation lawsuit.  You may have other options depending on what her statuts and updates say.  Next, use the same attorney or hire a good HR manager to help you devise a worker's comp program to deal with these issues in the future. 


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