Can we terminate someone who is out for a workers’ compensation injury?

Possibly. If the employee is protected by the Family and Medical Leave Act (FMLA), you must follow the provisions of that law. The FMLA can run concurrently with a workers’ compensation absence. Also, the injured employee might be considered “disabled” under the Americans with Disabilities Act (ADA) and you may have to offer accommodations. However, the workers’ compensation laws do not normally require you to maintain someone on your payroll if they are unable to work.

For example, if an employee:

1. Has exhausted FMLA benefits (or was never eligible),
2. Is unable to work even with an accommodation under the ADA (or you do not have work available within the employee’s restrictions), and
3. Will be unable to return within the foreseeable future,

then you should not have to keep that person on your payroll. You are not required to provide indefinite leave under the ADA, and as noted, the workers’ compensation laws do not require you to retain an employee who cannot work.

However, many states expect you to offer the next available position once the employee recovers, and a few states (such as Oregon and New Hampshire) allow the employee to reclaim a former position upon recovery, or prohibit termination based solely on the duration of the absence (such as Oklahoma, though an employee could be terminated for inability to work). In other states, if the employee is not expected to recover for a substantial amount of time (for example, a full year, or an unknown amount of time) you do not need to maintain employment during that time (except during FMLA leave).

Keep in mind that each case is unique. The specific situation and the employee’s abilities should be examined under the ADA requirements. For instance, offering a period of unpaid leave may be possible, or you may have an alternative position available which could be offered as an accommodation, assuming the employee is otherwise qualified for that position.