Most employees want to get back to work as soon as possible after an injury. No one expects to be fired from work after returning from a painful recovery. State and federal laws protect workers from unjust and illegal firings based on breach of contract, various forms of discrimination, employer retaliation, and disability.
With certain exceptions, every state recognizes the doctrine of “at-will” employment. At-will employment means both the employer and employee are free to terminate their working relationship at any time, for just about any reason. An at-will employee can be fired at anytime, with or without cause. (Montana is the only state which requires an employer to have “just cause” to fire an employee, once the employee has completed a probationary period.)
Most large companies have employee manuals with regulations and procedures for workers who are returning after an on-the-job injury. Many of these companies support returning workers by keeping their jobs open, providing alternate positions, or accommodating a newly disabled employee.
With an employee manual outlining procedures for returning to work, an employee may be able to resume his former job duties or move to a different position. These return to work policies are often considered binding for the employer. Workers who follow policy guidelines and are fired anyway may have legal recourse.
Barring discrimination or violation of an employment contract, workers may be fired for several reasons in an at-will state. Some of the most common are:
- A small business cannot operate without a key employee. The owner can’t wait for an employee to return to work or his business will suffer.
- Another position that accommodates a worker’s injury-related disability is not available.
- Refitting a workspace to accommodate temporary or permanent disabilities would be an unreasonable financial hardship on the employer.
- The worker no longer has the physical ability required to perform the job.
- The employer simply doesn’t like the worker’s job performance.
Sometimes, it’s simply impossible for an employer to accomodate a disabled employee. Absent evidence of discriminatory practices or other violations of the law, an at-will employee’s rights are limited.
Example: Small Restaurant Owner Can’t Rehire Worker
Mr. J. owns a small, successful restaurant. It’s filled to capacity most nights. He needs a minimum staff of two cooks and five waiters. He hopes to add staff in the future, but his bank loans, waiters’ salaries, taxes, and general overhead are financially prohibitive. The business can’t support any new employees yet.
Sally worked for Mr. J. as one of his cooks. On an especially busy night, food and beverages began to accumulate in the kitchen and spill on the floor. While turning to set a prepared dish in the service window, Sally slipped and fell, fracturing her leg in several places. Mr. J. helped Sally with workers’ compensation to be sure her medical needs and partial lost wages were paid during the two months of her recovery.
As much as Mr. J. wanted to wait for Sally to return to work, his restaurant couldn’t operate with just one cook; he had to hire a new one. Two months later Sally’s leg was fully healed, and she was ready to get back to work. Mr. J. told Sally he couldn’t afford an additional salary and regretfully told Sally her employment was terminated.
Breach of Implied Contract of Employment
One exception to the at-will doctrine is an implied contract of employment. Even in at-will employment, workers may have an implied legal right not to be fired after returning from an on-the-job injury. If an employer made statements inferring a worker’s job would be secure, the worker may have the basis of an employee contract, which supersedes the at-will employer-employee relationship.
Example: Fired After Slip and Fall Injury
Avery worked as an information technology analyst. Her quarterly job reviews were well above average, prompting the head of her department to tell Avery, “You’ll have a job with this company as long as you want.”
She continued to receive excellent work reviews, and her department head restated his promise by telling her, “You’ll have a job with the company as long as long as I’m your boss.” About a month later, Avery slipped and fell on the steps in her office building, breaking her right arm. Her injury required six weeks of treatment and therapy.
When she recovered, her department head told her that her employment was terminated. In her absence, the company hired another IT analyst. Avery reminded the department head that he’d assured her she would have her job as long as she wanted. She said her on-the-job injury and forced absence did not constitute just cause for firing her.
Avery retained an attorney and filed a breach of implied contract lawsuit against her former employer. Her attorney subpoenaed her employment records and used her history of above average work reviews as evidence. Avery testified that her department head stated, “you will have a job with this company as long as you want.”
The court found in Avery’s favor. The judge stated that, although Avery was hired as an at-will employee, her status changed to a contracted employee when her department head told her she’d have a job as long as she wanted. The judge determined that in the context of Avery’s employment status, her on-the-job injury and temporary absence did not constitute just cause for termination.
The judge awarded Avery damages representing her past and future lost wages and an additional amount for the mental anguish she suffered.
The Americans with Disability Act (ADA)
The Americans with Disabilities Act of 1990 (amended by Congress in 2008) makes it unlawful for an employer to discriminate against a current or prospective employee who is disabled. The ADA makes it illegal for an employer to terminate a worker based solely on the employee’s disability. It also prevents employers from firing employees whose disability or medical treatment prevents them from immediately returning to work.
Example: Fired After Facial Scarring
Beatrice worked as a receptionist for a national computer company. Her employer had offices all across the United States and profits of hundreds of millions of dollars each year. Beatrice was driving home from work one day when a drunk driver smashed head-on into her vehicle. Shards of glass and metal flew into her face. She suffered blindness in her right eye and facial scarring.
After her recovery, Beatrice reported back to her job. When her supervisor saw the condition of Beatrice’s eye and the scarring on her face, he untruthfully told Beatrice her position had been filled, and there were no other positions available in the company.
Beatrice sued the company based on the ADA’s discrimination laws. The court found in Beatrice’s favor, stating her employer had many available positions in different capacities, and Beatrice was qualified for several of them.
The court also determined that Beatrice’s supervisor discriminated against her based on her disability. Evidence at trial from fellow employees disclosed that Beatrice’s supervisor had said, “I wouldn’t hire her back. Did you see what she looks like? She’ll scare our clients.” In addition to awarding Beatrice damages for past and future lost wages, the court awarded Beatrice a substantial amount for mental anguish caused by her illegal firing.
Unable to Accomodate Disabilities
While employers are bound by ADA and EEOC (Equal Employment Opportunity Commission) rules and regulations, situations exist where firing a disabled worker is the only recourse available to an employer.
It may be legal for an employer to fire a disabled employee if his physical limitations prevent him from doing his job, and he can’t be moved to a position in which the disability isn’t “duty prohibitive.” An employer who has no choice but to fire a disabled employee is normally free of ADA or EEOC violations.
Not all companies are large enough to have a range of flexible positions available for disabled employees. When an employee’s disability makes it impossible for him to do his previous job, or any available job within the company, the employee may have to seek employment elsewhere.
Employers must, however, make reasonable modifications to accommodate workers’ disabilities. These can include access ramps, bathroom assist bars, raised desks, lower shelving, etc. One exception is when the cost of refitting a work area to accommodate a disabled employee costs too much for the employer. This usually occurs with smaller companies that aren’t financially capable of paying a lot for alterations.
Example: Paralyzed After Falling at a Jobsite
When Luke was hired as an electrician for a mid-sized electrical company, he was a healthy twenty-four year old man with no disabilities. One day, while working on the third floor of a new model home, Luke fell to the second floor when he stepped between two flooring joists. His spine was severed in the accident. The injury left Luke paralyzed from the waist down and dependent on a wheelchair to get around.
After a long period of convalescence, Luke went to his foreman and told him he wanted to return to work. The foreman was empathetic, and told Luke he would look into it. After the company made a thorough analysis of the costs (such as building a wheelchair ramp for every new jobsite, providing a handicapped bathroom facility, and purchasing a handicapped-equipped van to help move Luke to and from job sites), Luke was told he couldn’t return to work.
Although Luke’s disability was a direct result of an on-the-job injury, it was financially untenable for Luke’s employer to accommodate his new job requirements. Luke’s employer most likely did not violate the ADA’s or EEOC’s regulations. Workers’ compensation insurance would be wholly responsible for covering Luke’s injury compensation.
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