What can we do if an employee has an active workers’ compensation claim and is taking some time off for doctor’s appointments/therapy, but their absences have increased without medical certification?

Workers’ compensation claims can create complex employee management issues. Despite a lot of employer confusion around the protections of workers’ compensation claims, workers’ compensation does not provide job-protected leaves of absences.

Oftentimes, employees will need time off related to a workplace injury. Sometimes it will be intermittent leave to attend doctor’s appointments and treatment sessions, or sometimes they will need whole blocks of time that may extend months to years.

In all cases of leave requests, whether the injury was work related or not, the employer’s approach should be the same. The employer should evaluate whether the employee is eligible for California Family Rights Act (CFRA) and/or federal Family and Medical Leave Act (FMLA) leave and designate time off taken under those job-protected leaves.

If the employee is not eligible or has exhausted their leave allotment under CFRA and/or FMLA, then the employer engages in the interactive process and provides leave if it is a reasonable accommodation under the disability protections in federal and California law.

If the only time off that has been certified by the employee’s medical care provider is time for appointments and therapy, and the employee is eligible for CFRA/FMLA, then the employer should designate each of those appointments and therapy sessions as intermittent leave.

The medical provider needs to certify additional absences that the employee is taking. The employer in this case should inform the employee that these additional days off are unexcused and are not protected time, which means the employee is subject to any attendance control policy discipline the employer wishes to impose, up to and including termination — even though the employee has a workers’ compensation claim.

Of course, before termination, the employer should make multiple attempts to obtain medical certifications and warn the employee of the consequences for failing to provide medical certification.

The workers’ compensation law provides for retaliation protections. That is, an employer cannot be motivated to terminate the employee because the employee has filed a claim, or threatened to file a claim, or otherwise exercised their rights under the workers’ compensation law.

But that does not mean the employer cannot fire an employee with a workers’ compensation claim at all. The employer just must show that it is motivated by a legitimate business reason — in this case, the employee’s excessive unexcused absences.

Read more about Benefits During Workers’ Compensation in the HR Library.