Can My Employer Fire Me Because I Cannot Return to My Old Job After a Workers’ Compensation Injury?

Can My Employer Fire Me Because I Cannot Return to My Old Job After a Workers’ Compensation Injury?

A serious workplace injury can leave an employee unable to return to the job he or she performed before the accident, and that raises an important question: Can an Alabama employer fire an injured worker simply because the worker can no longer perform the old job?

Potentially, yes. Alabama’s retaliatory discharge law does not guarantee an injured employee a permanent job, nor does it generally require an employer to create a new position for an employee who can no longer perform the duties of the former position.  But that does not mean an employer can use an employee’s physical restrictions as an excuse to fire someone because he or she pursued workers’ compensation benefits.

The reason for the termination still matters.

What Does Alabama’s Retaliatory Discharge Law Protect?

Ala. Code § 25-5-11.1 prohibits an employer from terminating an employee “solely because” the employee instituted or maintained an action to recover workers’ compensation benefits.

This does not mean every termination following a workplace injury is illegal.

An employer may have a legitimate, nonretaliatory reason for terminating an injured employee. One possible reason is that the employee can no longer perform the essential duties of the job, but when that reason is challenged, the question becomes whether it was the actual reason the employee was fired.

Recommended Reading: What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law? explains why an employer does not necessarily defeat a retaliatory discharge claim simply by identifying another reason for the termination.

Does My Employer Have to Create Another Job for Me?

Generally, not under Alabama’s retaliatory discharge statute.  In Bleier v. Wellington Sears Co., 757 So. 2d 1163 (Ala. 2000), the Alabama Supreme Court explained that § 25-5-11.1 should not be interpreted as requiring an employer to create a job specifically designed for an injured employee or to provide special accommodations so that an employee can remain employed.  At the same time, Bleier held that an employee does not have to prove that he or she was “willing and able” to return to work as part of the employee’s initial retaliatory discharge case.

Instead, the employee’s ability to work may become relevant to the employer’s defense and to the damages the employee can recover.

Recommended Reading: Do I Have to Be Able to Return to Work to Bring an Alabama Retaliatory Discharge Claim? discusses Bleier and the important distinction between proving retaliatory discharge and proving lost-wage damages.

What If I Can Work—Just Not at My Old Job?

This is where the facts can become especially important.  Consider Dunn v. Comcast Corp., 781 So. 2d 940 (Ala. 2000).

Dunn was a service technician who was injured after falling from a ladder. His doctor eventually allowed him to return to work but restricted him from climbing ladders. Comcast initially allowed Dunn to perform duties that did not require climbing, but the company later demanded that he return to his service-technician duties, which required ladder climbing. When he could not do so, he was terminated.

Comcast argued that it had a legitimate reason for the termination: Dunn could not perform an essential function of his job.

The Alabama Supreme Court nevertheless found evidence creating a factual dispute over whether that was the real reason for the termination. There was evidence that a company manager had anticipated terminating Dunn before Dunn returned to work and before the company knew whether he would be able to climb ladders.

The case illustrates an important point: An employer may have the right to terminate an employee who genuinely cannot perform the job. But simply saying “he couldn’t do his job” does not necessarily end a retaliatory discharge case.

How Can You Tell Whether the Employer’s Reason Is Genuine?

The surrounding evidence matters.

Questions may include:

• When did the employer decide to terminate the employee?
• What restrictions had the authorized treating physician actually imposed?
• Had the employee reached maximum medical improvement?
• Was the employer accurately describing the employee’s restrictions?
• Had the employee previously been permitted to work within those restrictions?
• Did appropriate work actually exist?
• Were other employees treated differently?
• Did the employer follow its normal policies?
• Did the reason for termination change over time?

For example, an employer’s claim that it fired someone because of permanent physical limitations may deserve closer scrutiny if the termination decision was actually made while the employee was still recovering from surgery and the employer did not yet know what the employee’s permanent abilities would be.

Likewise, if an employer says there was no work the employee could perform, evidence that the employee had already been successfully performing restricted work may become important.

These are the types of facts that can help determine whether the employer’s explanation was legitimate or a pretext for retaliation.

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case? discusses the evidence Alabama courts examine when deciding whether an employer’s stated reason for a termination was the real reason.

What If the Employer Says I Refused Light-Duty Work?

That presents a somewhat different issue.  An employer may contend that it had work available within the employee’s medical restrictions but that the employee refused to perform it.  The details matter.

What job was actually offered? What were its duties? Did those duties comply with the authorized treating physician’s restrictions? Was there a definite job offer, or did the employer simply tell the injured employee to “come back to work”?

Those questions can affect both workers’ compensation benefits and a potential retaliatory discharge claim.  We will address that situation separately in our next article: Recommended Reading: Can an Alabama Employer Fire an Injured Worker for Refusing Light-Duty or “Suitable” Work?

The Bottom Line

An Alabama employer is not necessarily required by the retaliatory discharge statute to keep an employee indefinitely when the employee truly cannot perform the job. Nor does § 25-5-11.1 generally require an employer to create a new position for an injured worker; but, an employer also cannot use “you couldn’t return to your old job” as a convenient explanation for a termination that was actually motivated by the employee’s workers’ compensation claim.

The distinction is often found in the evidence surrounding the termination: the employee’s actual medical restrictions, when the decision was made, whether restricted work had been available, how company policies were applied, how other employees were treated, and whether the employer’s explanation is supported by its own records.

If you suffered an Alabama job injury and were fired because your employer said you could no longer perform your old job, don’t assume that explanation automatically determines whether the termination was lawful.

If you have suffered a job injury, were subsequently fired and you have questions about your rights and benefits under Alabama’s workers compensation laws -don’t hesitate to contact and speak with one of the experienced Alabama Workers Compensation and Social Security Disability attorneys at Powell and Denny today for a free consultation. Appointments are available in person, or virtually via Zoom if more convenient.  Powell and Denny would appreciate the opportunity to help.  And remember, there is no fee unless you win.

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