Injured on the Job and Terminated too! | DCR Workforce Blog

Injured on the Job and Terminated too!

injured workerA man hurt his knee in a workplace accident on December 2nd and received workers’ compensation. When he returned to work at the end of February, his manager blamed him for the accident, suspended him and later fired him. The worker alleged that he was terminated over the workers compensation claim and he has now gone to court calling it a wrongful, retaliatory termination.

When a worker sustains an injury, it could lead to a prolonged leave of absence, and also a possibility that the worker may never return to work in the same role with the same responsibilities.. But terminating an injured employee could lead to violations of federal and state law.

An employer may terminate a worker because:

  • Most employment is at the will of the employer, unless the reason cited for termination contravenes a law, public policy or contract.
  • The employer is unable to find an alternative work assignment which can reasonably accommodate the worker’s injured state.
  • The employee failed to return to work, even after a protracted absence, exhausting all the rights and protections under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and any other applicable State laws.
  • The employer has decided to eliminate the role close down the department and its operations, and terminate all workers in that department. In such cases, there is no obligation for the employer to accommodate the injured employee.

A worker’s health and employment are protected by various laws, and to avoid possible legal complications, an employer may not terminate a worker:

  • For filing a worker’s compensation claim.
  • For having a “protected” disability.
  • For requiring a medically substantiated leave of absence over a health condition, or for extending that leave when an authorized physician deems that the employee is not ready to return to work.
  • For requiring accommodation or lighter duties. Many states mandate the payment of vocational rehabilitation benefits to workers who cannot be inducted back into their old jobs or accommodated by their employers in jobs with modified duties. Accommodations could be in the form of a modified work schedule, modified tools or equipment, or restructured job duties to meet the needs created by the injury.
  • For reporting unsafe work conditions.

While policies are fairly straightforward when applied to permanent employees, it is often difficult to interpret regulations for agency-supplied temporary workers. Nationwide, temps are far more likely to find jobs in dangerous occupations like manufacturing and warehousing. And their frequency of injury has been dramatically, prompting David Michaels, Assistant Secretary of Labor for OSHA, to issue the following statement:

“Host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.”

Despite growing concern about the safety of temporary workers, the government has failed to make major changes, in part because the federal government does not keep injury statistics on temp agency workers. While accurate incident reporting doesn’t exist, most experts believe that the reporting of incidents involving temporary workers is understated.

In previous blogs, we addressed the many reasons for the unusually high accident rates. Temporary workers are more likely to take on more dangerous jobs, and do so with little or no training. Temps are often working in a new environment, operating machines or handling tasks they don’t have experience with and using muscles they might not normally use. Safety gear many not be provided, or the temp agency may deduct the cost from the employees’ paychecks.

In addition to a higher risk of sustaining a severe injury, temporary workers are often faced with greater risks of job loss following the accident.   AT DCR, we find that the vast majority of staffing agencies proactively take steps to ensure that they are placing their employees in safe working conditions, and that their employees are fairly treated if an accident does occur. However, the American Staffing Association reports that in the United States, there are more than 17,000 staffing agencies, and not all comply with Federal and State regulations for ensuring worker safety and protecting the rights of injured workers. Some of the most abusive practices reported by OSHA include:

  • Workers are required to sign day-to-day contracts which state that at the end of each workday, temp workers will be “deemed to have quit” until they report for work the next morning. Those who are unable to report are considered to not be employed.
  • Workers are forced to sign a form saying that that they did not encounter any unsafe work conditions before receiving their pay.
  • Any reported incident, regardless of how small, can result in a host company demanding that the worker be replaced. Workers fear being blacklisted by their temp agency if terminated from an assignment.
  • Workers also have been terminated by host companies for informing their staffing agency of unsafe working conditions or for refusing to perform dangerous tasks prohibited by law.
  • As a condition of settling a worker’s compensation claim, workers had to sign a statement saying that “unrelated to this incident, [he] chose to quit and seek gainful employment elsewhere.”
  • Compared with regular workers, temps in low-skill, high risk positions are less educated on average, far less likely to be represented by a union and far more likely not to speak English. In addition, many temp workers are undocumented, making them particularly wary of formal complaints. In some cases, host employers and staffing agencies withhold information or provide misleading information regarding the worker’s rights to file claims.
  • When temp workers are injured on the job, the temp firm and the company may argue other over who is responsible, sometimes even delaying emergency medical care.

Some Best Practices:

  • Termination is not possible without sufficient notice to the worker, providing an explanation and reasons for the elimination of the position or the company’s inability to accommodate the worker’s injury-related needs..
  • Temporary staffing agencies and host employers share control over the worker, and are therefore jointly responsible for temporary workers’ safety and health. Each party should consider the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards. For example: staffing agencies might provide general safety and health training, and host employers provide specific training tailored to the particular workplace hazards.
  • Staffing agencies and host employers should establish joint policies and procedures that define steps to be taken in the event of a worker accident. Workers should be informed of these procedures, and at time of engagement be provided a written statement of the rights and responsibilities of all parties – including conditions under which employment may be terminated.
  • All employers – including staffing agencies – should establish a ‘safe’ process that allows workers to identify potential safety concerns, report accidents, and file complaints against supervisors who are unlawfully punishing or terminating workers who have filed a workers’ compensation claim.
  • Staffing agencies have a duty to inquire into the conditions of their workers’ assigned workplaces. They must ensure that they are sending workers to a safe workplace. They should determine what conditions exist at their client (host) agencies, what hazards may be encountered, and how best to ensure protection for the temporary workers. The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.

In every case, keeping the lines of communication open between the staffing agency, host employer and worker is half the battle – the rest depends on the organization and its culture.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.