Kaarin S. Nelson is an attorney at Halunen & Associates. She represents employees facing workers’ compensation retaliation and other employment related issues. Below, she discusses how employees can face scrutiny after filing a claim.

You’re a good employee and you work hard at your job. You go in everyday and tuck yourself under a customer’s car, drive to a client’s office or hospital, or climb the ladder to a customer’s roof. One day, a day that otherwise starts out like all the others, you injure yourself while you are at work.  This injury could be a minor slip and fall, or a more serious accident that requires surgery and possibly years of rehabilitation. You go to the doctor, you miss some work, and you may have some work restrictions. As is your right, you apply for workers’ compensation.

Sometime after you apply for work comp, your employer starts treating you differently. It might be as elusive as making you feel less valuable than other co-workers. Possibly your employer becomes critical of your work in ways that didn’t happen before your request for workers’ compensation, amounting to some form of performance improvement plan. Or maybe it is as bad as humiliating comments about your value as an employee (I have heard comments as shocking as “we should take you out back and shoot you” and “if you hadn’t applied for workers’ compensation none of this would have happened”). This humiliating treatment may lead to a demotion, termination, or some other form of adversity.

If you are being treated differently after you applied for workers compensation, you may be experiencing retaliation because of that claim, and the law protects you from that.  There are steps you can take to make sure this law works for you.  You can call an attorney who works with employees experiencing retaliation because of a workers compensation claim. You can also make a report to your employer laying out your concerns of retaliation. This report should protect you against further retaliation, or, at the very least, it may strengthen your legal claim if your employer turns a blind eye to your report.

Recovering from any injury can be stressful and daunting. Having work restrictions can be scary and may force you to address concerns about your future earning potential. Your doctor will probably tell you to focus on your recovery, and you should, but you might also have viable legal recourse that you should be aware of and could help protect you and your family.

Carl Crosby Lehmann posted the following Q&A on BusinessManagementDaily.com. Workers’ Compensation Attorney Mike Lammers builds upon Mr. Lehmann’s answer by sharing his own insights into Minnesota workers’ compensation law.

Q. We have an employee who has been out with a work-related back injury for more than six months. We have not received any indication from her doctor about when she will be able to return. Must we keep her on workers’ compensation leave status indefinitely? Do we have to indefinitely hold open her job?

The short answer is “no.” Minnesota workers’ compensation law does not require indefinite leave for an employee who has suffered a work injury.

An employee on an indefinite workers’ compensation leave who has exhausted any FMLA leave may be lawfully terminated and has no absolute right to reinstatement to her current position at the time she is deemed medically able to return to work.

That being said, workers’ compensation law requires employers to undertake a fact-based analysis similar to the ADA’s reasonable accommodation analysis. When an employer has been provided a definite return-to-work date, even one that is fairly distant, it must analyze whether it can accommodate the employee with an extended leave of absence and keeping her position open or whether this would be an undue hardship.

Minnesota courts have generally held that it is not reasonable to accommodate an indefinite, lengthy leave when the employee cannot establish that she will ever be able to return to work or when that might occur. If terminated, however, such an em­­ployee should be free to reapply for a job once she is physically able to re­­turn to work (with or without a reasonable accommodation).

Beware possible legal exposure for unlawful retaliation against an employee for asserting workers’ comp rights. Make sure you are acting consistently with other leave of absence situations, including leaves necessitated for reasons other than workers’ compensation covered injuries.

Mike Lammers Chimes In

Mr. Lehman’s advice here is good. While employers aren’t legally required to hold an injured worker’s job open indefinitely, they need to act reasonably wherever possible. The author is right to point out that employers should be aware of possible exposure to legal action for retaliatory discharge if they aren’t very careful when eliminating the job of an injured worker.

I would add that the employer should pay specific attention to the timing of events. We sue employers who illegally fire people that have a workers’ compensation claim. One of the very first things we look at when evaluating a case is the temporal relationship between the termination and the employee’s injury or diagnosis/prognosis change. In other words, how much time has passed between a work comp “event” and the firing? If the employer decides to fire someone soon after they get hurt or file a work comp claim (or have a medical procedure, a status change, etc.) a good argument might be made that they are retaliating against the injured worker.

The law is attempting to ensure fairness. On the one hand, a business can’t be expected to hold a position open forever without knowing if it will ever be filled. On the other hand, an employee shouldn’t be punished for getting hurt on the job.

Related source: Business Management Daily

Stephanie Cannon, a smoker for 18 years, said she smokes nearly a pack a day, but changed her routine after her supervisor told her “we don’t want you smelling like smoke when you come here.”

Cannon said she stopped smoking on her breaks and in her car, and she bought new work clothes.  She even tried to keep her new clothes fresh by sealing them in a plastic bag and spraying them with air freshener.

Her efforts were not deemed satisfactory by the hospital, as they encouraged her to shower at work instead of at her home, and provided her with resources to quit smoking even though she wasn’t interested in quitting.

Cannon said she was even advised to “avoid my husband in the morning” because he also smokes.

Despite her efforts, Park Nicollet fired her, sparking a debate over the legality of the termination.

Park Nicollet has a strict “no smoking” policy, which clearly states that no smoking is allowed on the premise at any time.  Minnesota law states that an employer cannot hire or fire an individual for engaging in a legal activity if it takes place off the premises during non-work hours, but it’s not that black and white.

Under the law, employers have the right to restrict tobacco use during non-working hours if their use creates an “occupational-related hazard”.

The American Civil Liberties Union has gotten involved in the case.  Spokesman Chuck Samuelson said that the law does not offer the same protection for each individual.

“Private employers can do things that governmental agencies cannot, to their employees,” Samuelson said. “The Constitution simply does not apply in the same way. If she worked for Hennepin County or Ramsey County Hospital she would be better protected than if she worked for a private hospital, which she did.”

The matter will likely play itself out in the courtroom, but Samuelson said the case balances a delicate line between personal freedoms and public safety.

“You’ve got one person’s desire to indulge in a legal activity versus the government’s duty to protect the population as whole from known bad things (like second-hand smoke),” Samuelson says.

Mark Wernimont, an advocate for smokers’ rights, said although Cannon worked at a hospital her duties did not involve firsthand health care.

“She as a receptionist really had nothing to do with the hands-on health care,” Wernimont said.  “It’s just one more nail in the coffin of freedom.”

Park Nicollet would not comment on the matter, but Cannon said she shouldn’t have to feel like an outcast for smoking on her own time.

“What I do in my home or outside of work when I’m not punching into that little clock is my business.”

Tiffani Webb, the 37-year-old guidance counselor, was fired last December after working 12 years at Murry Bergtraum High School for Business Careers. The reason for her termination – photos of Webb dressed in lingerie and swimsuits from her former career as a model 17 years prior.

Webb disclosed her former job as model to the school during the hiring process. It wasn’t an issue until photos of her wearing scantily clad outfits surfaced online.

“The inappropriate photos were accessible to impressionable adolescents,” a chancellor’s committee ruled. “That behavior has a potentially adverse influence on her ability to counsel students and be regarded as a role model.”

Webb disputes these claims and cites her positive history as a guidance counselor as evidence. She is claiming wrongful termination and sexual discrimination and is seeking reinstatement as well as back pay.

What do you think? Should Webb have been fired for her previous career as a model? Or is she a victim of wrongful termination?

Related Sources:

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