This article examines whether an employer can fire an employee for getting hurt on the job or for having repeated workplace injuries.
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Question: A reader asks, “Can I be fired for repeated workplace injuries? I’ve been hurt three times in the past two years and my supervisor made a comment that I get hurt a lot.”
As with most legal questions, the answer is maybe.
Your employer cannot fire you for filing a workers’ compensation claim, testifying at a workers’ compensation hearing, or otherwise pursuing your right to compensation for injuries suffered at work. Doing so is illegal in Virginia and provides you with an additional legal cause of action.
Federal law also provides some protection to injured workers.
The Occupational Safety and Health (OSH) Act prohibits an employer from discriminating against or disciplining an employee solely because the employee reports a workplace injury or occupational illness. Reporting a work-related injury is considered a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination. Other whistleblower statutes enforced by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) also protect employees who report workplace injuries.
Further, OSHA has stated that taking disciplinary action against employees who are hurt on the job, regardless of the circumstances surrounding the injury, is a direct violation of the law.
But depending on the circumstances surrounding your workplace accidents, your employer may have a valid reason for firing you.
Your employer will likely conduct a safety investigation to determine the causes of your workplace accidents. This is almost guaranteed if your employer has concerns over your ability to perform your job or if it is looking for a way to terminate your employment while reducing the risk of being sued for wrongful termination.
Specifically, your employer will try to determine whether you were engaged in misconduct that caused the accidents and injuries and whether there are appropriate safety measures in place to prevent or reduce the likelihood of injury.
If your employer determines that you were clearly at fault and have caused repeated workplace accidents that put yourself and others at risk, then your employer may take disciplinary action. The type of disciplinary action and the legitimacy of the employer’s action depends on several factors.
OSHA encourages employers to maintain and enforce legitimate workplace safety rules to eliminate or reduce workplace injuries and to prevent injuries from happening. But a work rule cannot be used as a pretext for discrimination against an employee who reports an injury.
OSHA recommends that employers answer the following questions when determining whether to take disciplinary action based on frequent workplace injuries due the violation of an employer rule:
- Does the employer regularly check the workplace for compliance with the safety rule that the employee violated allegedly? Or does the employer only check for compliance with the rule when there is an injury?
- Does the employer impose equal discipline against employees who violate the work rule in the absence of an injury? In other words, is the employer disciplining the employee only because he or she was hurt? Enforcing a rule more strictly against injured employees than non-injured employees is unlawful.
- Is the safety rule specific or vague? For example, a rule that tells employees to “work carefully” is vague and can be manipulated as used as a pretext for unlawful discrimination against an injured employee. OSHA and courts do not look on such rules kindly.
Employers should also consider the following questions when determining whether to discipline an employee hurt on the job:
- Did the employee have a reasonable basis for doing what he or she did? For example, did a supervisor recommend cutting corners and ignoring the rule to increase production? Or had the employee been written up in the past for lower production? Either scenario provides potential justification for violating the safety rule.
- How egregious was the employee’s deviation from the safety policy? For example, was the deviation minor and unintentional, or was it deliberate? A deliberate action should lead to more severe discipline.
- Is the imposed discipline proportionate to the employee’s interest in enforcing the safety rule?
- Has the employee been trained on the safety equipment or provided with clear guidance on company policy regarding the activity that caused the injury?
The answers to these questions should determine whether the employer disciplines an employee for getting hurt on the job.
Employers owe employees a hazard-free work environment and must develop safety procedures designed to protect employees.
Your employer cannot discipline you for getting hurt on the job unless your injuries were due to your violation of a safety rule or company policy regarding reporting accidents and injuries. If your employer determines that you violated a safety rule or company policy, then this finding may provide not only justification for terminating you but also a potential defense to your workers’ compensation claim. Ultimately the Virginia Workers’ Compensation Commission will determine whether your violation of a safety rule should preclude you from receiving workers’ comp benefits.
Whether the discipline imposed by your employer for violating a safety rule is lawful depends on several factors. An experienced employment lawyer in Richmond can help you determine whether you have a potential wrongful termination claim.
Have more questions about your workplace accident or your rights under OSHA? Contact Virginia workers compensation lawyer and OSHA attorney Corey Pollard for a free consultation: (804) 251-1620. We help injured workers across the state obtain temporary total disability benefits, permanent partial disability compensation, lifetime medical benefits, and lump sum workers’ compensation settlements. And we want to help you.