May we continue with our plans to terminate an employee who filed a workers’ compensation claim the day before the scheduled termination?

Although an employee who files a workers’ compensation claim is not “bullet proof” from discipline, it is not always a good idea to terminate the employee even if the company holds itself out as employing workers “at will.”

Labor Code Section 132a specifically protects employees who file workers’ compensation claims, stating that employers may not discharge, threaten or discriminate against an employee who has brought a workers' comp claim. Violators may be subject to financial penalties and to reinstate the employee and reimburse them for lost benefits and wages.

Notwithstanding these restrictions, there are times an employer can assert a “business necessities” defense and terminate the employee. If the employee continues with substandard work performance, the disciplinary process may continue, up to and including termination.

Many times, the employer has not followed the disciplinary process sufficiently, and wishes to use the workers’ compensation claim as a way to resolve the issue, claiming, “We have to replace this person.” The reality, however, might be that there have been inadequate warnings and lack of supervision.

Due to the penalties outlined in the code as noted above, terminating an employee with an active workers’ compensation claim is a delicate area, and it is highly advisable to seek legal counsel before doing so.

You can find more information in the Employee Protection from Discrimination section of the HR Library.