Q: We have an employee who suffered a work-related-injury but has yet to return to work. We need to fill this position. Are we able to rightfully terminate this employee?
A: Yes, as long as the employee has exhausted all leave and the termination is a business decision and not in retaliation for the work-related injury.
Chapter 451 of the Texas Labor Code prohibits discrimination against or termination of an employee for filing or initiating a workers’ compensation claim in good faith. Generally speaking, you cannot discriminate or retaliate against, or terminate an employee, for filing a workers’ compensation claim or alleging he/she was injured on the job, so long as that claim was made in good faith. Accordingly, as long as the reason for the termination is a business decision (such as performance) and not an act prohibited by Chapter 451, the District may rightfully terminate the employee.
Some of the most common instances that may arise include:
1. Employee is unable to return to work in any capacity – In this case, the District may terminate the employee if he or she is unable to meet the physical requirements of the job and the District needs the vacant position filled.
2. Employee is physically able to return to work in a restricted or limited capacity – Here, the District can tender a bona fide offer of employment to the employee offering the person a job within his or her medical restrictions. If the District is unable to offer a limited or restricted position, or if the employee fails to return to work in the limited position offered, then the District may terminate the employee.
3. Employee is physically able to return to work (as determined by the employee’s treating doctor), yet still fails to return to work – In this scenario, the District may terminate the employee if the employee fails to return to work following being released by the employee’s treating doctor. This normally happens when there is a dispute regarding the extent of the employee’s injuries or when the employee disagrees with their treating doctor’s medical opinion. Note – the only injuries taken into account for workers’ compensation purposes are the injuries determined to be caused by the work-related-injury.
It is also worth noting that workers’ compensation is a benefit (income and medical) rather than a form of leave. Instead, leave that they employee may use while taking workers’ compensation benefits might include state and local personal leave, Family Medical Leave, temporary disability and/or assault leave, as applicable. If more than one type of leave applies or is available, it should be taken concurrently. Accordingly, in the instances noted above, if the employee has yet to exhaust available leave, they may be entitled to additional time off work until that leave is exhausted. However, if their leave is exhausted and they fail to return to work, then the District may rightfully terminate their employment for business reasons. In all instances, an employee’s ability to return to work, as determined by their treating doctor or the designated doctor, will be a factor taken into consideration.
In circumstances that materially differ from the above instances, we recommend contacting your local school attorney. Further, any additional leave requested by a physician that is short in duration could be considered a reasonable accommodation under the Americans with Disabilities Act, worthy of discussion with counsel. Finally, termination of a contract employee will require compliance with the applicable Chapter 21 nonrenewal or termination procedures.