“We have an employee, Sam, who’s been a problem lately. His manager and I talked about firing him on Friday. However, today he filed a workers’ compensation claim. The injury may be valid but how does this affect our ability to fire him as planned?”
My HR Survival Tip
This is one of those “it depends.” The most common legal concern is that any disciplinary action after an employee has entered into that protective bubble easily appears retaliatory. In your case, the protective bubble is workers’ comp but this also applies for pregnancies.
I receive numerous calls throughout the year about how the manager was just waiting until next week to terminate an employee. Then, inevitably, the manager receives a workers’ comp claim or a pregnancy announcement before the termination meeting is scheduled. My “it depends” is based on what you’ve done to document your talks or considerations regarding any upcoming disciplinary actions.
Even if I haven’t previously convinced you to document as you go, you absolutely should document your thoughts regarding terminating or disciplining an employee. This can be as simple as emailing your manager (or yourself) something like, “I want to talk with you about Sam and my recommendation that we consider terminating him” or “I definitely agree we should terminate Sam so let’s discuss the timing.”
Why are these emails important? Because now you have an official time stamp (the email date) of your intentions and/or problems you are having with Sam. It potentially pulls the retaliation claim off the table. It may also let you move forward with your intentions.
You will be saving yourself and your company a lot of time and energy by picking up this habit immediately. The other side of this answer is you’ll probably need to hire an employment attorney to help you go through the steps to discipline or fire Sam at the lowest possible risk to your company. It all depends on how well you’ve documented things up to that moment. Timing is everything.
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