Wrongful Termination in Retaliation for Filing Utah Workers' Compensation Claims

Following an on-the-job injury, many employees worry that reporting their injury and any subsequent workers’ compensation claim may affect their job security. Employers also must be cautious when making employment decisions after an employee suffers a workplace injury. In some cases, if a decision to fire a worker occurs after a workers’ compensation claim it could provide the basis for a wrongful termination claim.

When can an employer fire a worker who has filed for workers’ compensation? 

This can be a complicated question and a qualified employment law attorney, like the attorneys at Stavros Law P.C., can provide counsel based on the facts of an individual matter. 

This article will address some of the initial considerations in bring or defending against such claims.

Workers’ compensation is generally the only remedy for an employee injured at a Utah workplace (at least for non-intentional injuries). The safety net means the employer’s workers’ compensation insurer pays for medical treatment costs and a portion of the injured employee’s wages while recuperating. However, an employee may have a wrongful termination claim if an individual can prove he or she was fired in retaliation for filing a workers’ compensation claim. To prove retaliation, the employee has the burden to prove the following:

·        A workers’ compensation claim was filed

·        The employer knew about the claim

·        The employer fired the employee

·        The workers’ compensation claim was the cause for the termination

It can become difficult for an employee to prove the causal link between the filing of a worker’s comp claim and being fired, or to show pretext for the employee's termination. However, a cautious employer also needs to think of the costs of potential litigation. Even an appearance of a link between the firing and a workers’ comp claim can result in costly wrongful termination claim defense. 

Utah law recognizes a claim for wrongful termination in violation of clear and substantial public policy. Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 3.  In Touchard, the Utah Supreme Court held that a retaliatory discharge of an employee for filing a workers' compensation claim is a violation of public policy. Id. at ¶ 19.  And, just last year, in Stone v. M&M Welding & Constr., Inc., 2013 UT App. 233, the Utah Court of Appeals affirmed the clear and substantial public policy set forth in Utah's Worker's Compensation Act, Utah Code Ann. §§ 34A-2-101 to -1005. A prima facie case of wrongful discharge requires that employee show that his employer 1) terminated him; 2) that a clear and substantial policy existed; 3) that the employee's conduct brought the policy into play; and 4) that the discharge and the conduct bringing the policy into play are causally connected.  Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 404 (Utah 1998). Once a prima facie case had been made, the burden shifts to the employer to "articulate a legitimate reason for the discharge. When faced with a legitimate reason for termination, the employee must then prove that engaging in the protected conduct was a 'substantial factor' in the employer's motivation to discharge the employee." Id. If the employer meets this burden, the employee then must show that the legitimate reason proffered by the employer is pretextual.

There are numerous ways in which an employee can show that the articulate legitimate reason for discharge is pretextual. Such evidence can include the falsity of the articulated reasons, the proximity of the termination to the exercise of workers' compensation rights, shifting explanations for the discharge and other factors.

Can an employer ever discharge or discipline a workers’ compensation claimant?

Employers may still be able to fire an employee or discipline an employee after that employee files for workers’ compensation. The firm must make sure to follow progressive discipline policies, and make sure that discipline is not related to the workers’ comp claim. In addition, employers are well advised to seek the advice of competent counsel to review the facts related to the decision prior to terminating an employee.

Sometimes an injury may mean that an employee cannot complete the required duties of the position. This may ultimately provide justification to terminate the employee. The questions becomes whether the reasons supporting the termination decision were credible or pretextual and in reality discriminatory.In addition, in some cases, issues concerning FMLA, accommodations for disabilities under the Americans with Disabilities Act and short-term and long-term disability plans need to be considered.

In employment situations that involve workers’ compensation claims and subsequent discipline or discharge, a consultation with an experienced employment lawyer is important. An employer may be able to avoid litigation by seeking experienced counsel. Likewise, an attorney can advise an employee of his or her legal rights and assist with a wrongful discharge claim, if a workers’ comp claim prompted discipline or termination.