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Make no mistake about it: Jurors, generally, identify and sympathize with employee/plaintiffs – not employers. After all, each juror usually either is or has been an employee and prospective jurors who are part of senior management are normally the first to be stricken by a plaintiff in jury selection.

In particular, however, jurors tend to sympathize with injured workers. Thus, when an employee has not only been hurt on the job, but also “terminated” by his employer while recuperating, it is not surprising some of the larger verdicts against Texas employers in recent years have been in worker’s compensation retaliation cases.


    1. a Houston jury awarded $71,200 in “actual damages” – back pay and “mental anguish” – and $2.5 million in punitive damages against a private school for terminating its admissions director;
    1. the City of LaPorte was tagged for $100,000 in actual damages and $1,000,000 in punitive damages for terminating a “paint and body repairman” who filed a worker’s compensation claim; and
    1. a Harris County judge awarded $150,000 in actual and $500,000 in punitive damages to a manager who was “terminated” after failing to return to work after an on-the-job injury.

Of course, the Hobson’s choice an employer often faces when a critical employee suffers a serious on-the-job injury is what to do when the employee is medically unable to return to work for an extended period of time? The employer has a business to run, yet if it hires a replacement doesn’t it risk a retaliation claim? There is no foolproof way of preventing an employee from suing, but there are ways to minimize the risk and enhance the likelihood of a favorable result.

First, understand the law. Nothing in Texas law requires an employer to indefinitely hold a position open for an at-will employee or excuse an employee’s absence from work simply because the absence results from an on-the-job injury (the federal Family and Medical Leave Act, however, may require twelve weeks of unpaid leave for a “serious medical condition”). Filing a workers’ compensation claim is not a ticket to lifetime tenure. Nor is an employer obligated to adopt light-duty programs or otherwise accommodate injured employees simply because the injury occurred on the job. The law prohibits discrimination. As long as the employer’s neutral absence control policies are applied equally – as they would be for an employee medically unable to continue working after expiration of the employee’s accrued leave because of a non-work-related condition, such as slipping at home in the bathtub – there is nothing unlawful.

Second, good “bedside manner” goes a long way to discouraging or winning retaliation claims. If an employee is unable to return to work after exhausting all accrued paid and unpaid leave provided by the FMLA or the employer’s leave policies, the employee should not be “terminated.” Take “terminated,” “fired,” “discharged,” and similar words out of your vernacular. Rather, the employee should be offered the opportunity to provide medical evidence whether he is able to return to work and, if he is not, informed-in writing-because all leave has been exhausted and the employee is still unable to return to work, the company needs to fill the employee’s position.

Then – and this is the critical part – assure the employee when and if he is medically released to return to work, the company will gladly consider him (1) for any then-available positions; (2) for which he applies; (3) and for which he is qualified; (4) on an equal, competitive, non-discriminatory basis with all other qualified applicants. Additionally, all internal personnel documents should be consistent with this position. For example, documents in the employee’s personnel file should not state the employee was “terminated,” “discharged,” “fired,” etc., and the personnel file should reflect the employee is eligible for rehire.

Finally, the same procedures should be followed for employees unable to return to work from non-work related injuries or illnesses.

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John L. Ross

John L. Ross


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