Can an employer terminate an employee with a workers’ compensation claim?
Yes, but be careful.
KRS 342.197(1) prohibits an employer from retaliating against an employee for filing a lawful workers’ compensation claim. To establish a cause of action for retaliatory discharge, “it is incumbent on the employee to show at a minimum that he was engaged in a statutorily protected activity, that he was discharged, and that there was a connection between the ‘protected activity’ and the discharge.” Bishop v. Manpower, Inc. of Central Kentucky, 211 S.W.3d 71 (Ky. App. 2006). The employee need not show that retaliation was the sole or even the primary motivating factor for the discharge, but only that it was a substantial motivating factor in the decision. This requires evidence of a causal relationship between the discharge and the filing of the workers’ compensation claim.
That said, any employer considering firing an employee who is out on workers’ compensation leave should ensure that its decision is not punitive, but rather based on misconduct unrelated to the claim.