Can you fire someone who got injured? Yes, if you do it correctly
Consistently enforcing safety policies is the key to firing unsafe employees. Employers can’t fire an employee for getting injured, but they can discipline employees for violating documented safety rules or policies.
A common problem is that employers (and especially supervisors) don’t consistently follow the company’s disciplinary process for safety violations. Then, when someone gets injured, they want to impose discipline or termination. This can create the impression that the employee was disciplined “because of the injury” or “because of the workers’ compensation claim.”
Employee rights
The OSHA regulation at 1904.35 says that employers can’t discharge or discriminate against employees for reporting a work-related injury or illness. From a workers’ comp standpoint, imposing discipline can create the impression of retaliation for filing a claim (which is a worker’s right).
To illustrate, suppose an employee frequently removes his hard hat. The supervisor is inconsistent about addressing this and never documents any reminders given. Eventually, the employee gets a head injury that would have been prevented by the hard hat. The supervisor wants to fire the worker for the repeated safety violation.
If the terminated employee files an OSHA whistleblower claim or a workers’ comp retaliation claim, he’ll likely say that he was disciplined for reporting the injury or filing the claim. The company will have a chance to refute the claim, but this can be challenging when there’s little or no documentation of a recurring problem.
For related information, see Preventing Retaliation: OSHA's Whistleblower Protection Program.
Justifying the adverse action
If the company consistently enforces its rules (with documentation), then a termination should be easier to justify. An investigator might ask questions like:
- What is your policy on disciplining employees for safety violations?
- If the policy says that a second warning will be in writing and a third violation will result in termination, do you have documentation of previous warnings?
- Have you disciplined or terminated employees for safety violations even if they didn’t get injured?
If the company can’t show that it consistently enforces safety rules (regardless of injuries) then firing an employee who got injured can look like unlawful retaliation.
To use the hard hat example again, suppose the supervisor issued a verbal warning on June 14 and documented (for the supervisor’s own records) that she issued a verbal warning. On August 24, the supervisor issued a written warning to the same employee about not wearing a hard hat. Finally, on October 10, the employee got injured while not wearing a hard hat. If the policy says that a third violation results in termination, the employee can be fired, regardless of the injury. If the employee files a retaliation claim, the termination should be more defensible.
Follow the policy
Now, a company policy might not stipulate termination after the third warning. Maybe that’s the fourth step after a verbal warning, written warning, and suspension. Also, safety disciplinary policies sometimes have time limits, like all warnings must occur within a rolling 24-month period, so supervisors aren’t looking back many years for previous warnings.
For potentially life-threatening violations (like working at heights without fall protection) a policy might start with a written warning or suspension, then termination on the second violation. Employers can choose to apply different standards based on the seriousness of the violation. But once established, supervisors must enforce the policy consistently and document all warnings.
Key to remember: It’s not against the law to fire an employee who got injured if employers consistently follow their enforcement policies. However, employers cannot fire an employee “because of” the injury or for reporting an injury.
