Employee’s Anti-Retaliation Claim Fails

Reprinted with permission from the Management Association of Illinois’s Web site, www.hrsource.org. The article was posted on May 21, 2008.

Employers have long been aware that if an employee cannot return to work after the conclusion of the 12 weeks allotted under the Family and Medical Leave Act (FMLA), the employee no longer has any rights under that Act. What if the employee has a workers’ compensation injury? Is it retaliation to terminate the employee once family medical leave (FML) expires? Is it permissible to run FML concurrently with workers’ compensation leave? These questions were addressed by the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) in a recent opinion.
An employee was terminated for excessive absenteeism after injuring his back in a work-related accident. He was provided with 24 days of FML time (the time he had remaining due to a previous leave). The company ran his FML time concurrently with his workers’ compensation leave and terminated him at the conclusion of the 24-day period when he could not return to work.

The employee filed a lawsuit alleging, in part, that he was terminated in retaliation for exercising rights under the workers’ compensation act. He also alleged that he was wrongfully required to use his FML time for his workers’ compensation injury. The Seventh Circuit first considered the retaliation claim. The court stated that “…Illinois law does not require an employer to retain an at-will employee who is medically unable to perform the job. Nor is the employer obliged to reassign the employee to another position rather than terminate the employee. Finally, and most importantly, ‘an employer may fire an employee for excess absenteeism, even if the absenteeism is caused by a compensable injury.'” [Citations omitted].
In addition, the court confirmed that it is permissible for an employer to run workers’ compensation leave time concurrently with FML time. According to the court, “…if the employer provides adequate notice, FMLA may run concurrently with workers’ compensation benefits.”

The above case makes clear that an employer may terminate an employee on workers’ compensation leave once that employee has exhausted leave time under applicable laws and company policies. Illinois workers’ compensation law does not entitle an employee to any specific amount of time off when the employee is injured. However, in order to avoid claims of retaliation, employers should make sure to have specific leave policies in place and to enforce those policies in a non-discriminatory manner.

There may be other important matters to consider before termination. For example, the employee’s injury may constitute a disability under the Americans with Disabilities Act (ADA), thus entitling the employee to a lengthier leave of absence than what company policy provides as a form of reasonable accommodation. Any concerns regarding this issue should be discussed with legal counsel. In addition, remember that even if the employee is terminated, he will continue to collect benefits through your workers’ compensation carrier until he is cleared to return to work or the case is otherwise resolved. Make sure to notify your carrier of your decision to terminate. Last, do not forget to designate the employee’s leave as FML and notify the employee of the designation in writing. See Dotson v. BRP US Incorporated, Case No. 07-1375 (7th Circuit, March 21, 2008).