b'Workers Compensation RetaliationWho, What, Why . . . Who does it apply to: All employers, whether subscribers tomake do.If it is a few months, the employer probably will need a workers compensation insurance or not. replacementat least temporarilyuntil the employee returns.If it is a few years, the employer will most likely want to bring What is the issue: Employees of businesses that make workersin a permanent replacement.In either of the latter cases, the compensation claims sometimes engender the aggravation ofemployer will need to know if it has to hold the position open or their employer. Employers think the employee is faking injury,if it can fill it permanently with a replacement. milkingtheclaim,orsimplypreventingtheemployerfrom getting work done while the employee is out. This aggravationTheneedtofillapositioncanserveasalegitimatenon-can sometimes turn into retaliation by the employer which isdiscriminatoryreasontoletanemployeego.Thatsaid, prohibited under the law.employers need to be careful they can justify that decision. A court will likely agree that employers should make do for a few What is the law: Employers are prohibited from discriminatingdays or weeks, hire a temp if it is a few months, and possibly (or retaliating) against an employee who has: need a permanent replacement if it is a year or more. Steppingmade a claim for worker compensation in good faith; outside these confines may be seen as some evidence thehired a lawyer to represent the employee in a claim; employer is trying to get rid of the employee because of the claim. institutedorcausedtobeinstitutedanadministrative proceeding regarding a workers compensation claim; and Whatotherconsiderationsarethere:Becauseitisoftentestified or is about to testify in an administrative proceedingdifficult to determine an employers motivation in terminating regarding a claim for workers compensation. an employee out on workers compensation leave, the courts Is termination retaliation: If you have not yet experienced ahave developed a non-exclusive list of factors that lean toward workers compensation claim, you dont realize that this is THEdiscriminatory or retaliatory intent:question when it comes to workers compensation retaliation.knowledge of the compensation claim by those making the Virtually all of the disputes regarding retaliation revolve arounddecision on termination; termination that occurs while the employee is out with the injury expression of a negative attitude towards the employees or when the employee returns. injured condition;failure to adhere to established company policies; As noted above, the law prohibits retaliation against an employee who has made a claim. So, employers cannot terminate the discriminatory treatment in comparison to similarly situated employee for making the claim. However, they may be able toemployees; and terminate the employee because they have to refill the position.evidence that the stated reason for the discharge was false.WhenanemployeegoesoutwithaworkerscompensationAre there other laws to consider before terminating:If you are claim, the employer is left with an open position that it requiressubject to the Family Medical Leave Act (FMLA) (50 employees, an employee to fill. The injured employee may be out a few daysand other requirements), or the Americans with Disabilities Act or a year.If it is a few days or weeks, most employers will simply(ADA) (15 employees), you must follow the limitations those 83'