Can An Employee Be Fired While Out On Workers’ Compensation?

Question:  My father-in-law was injured at work, and had to have surgery for a torn rotator cuff as a result. They say he has until August 1st to ‘get better’ or they will fire him. The injury occurred in March (I believe) and he’s been off work since the end of April when he had his surgery. His doctor said recovery time is 6 months due to his age and the severity of his injury and surgery. Actually, his doctor said he would refuse to ‘sign off’ on my FIL returning to work before six months has passed since surgery. Can his employer fire/replace/demote him? He works for the state transportation department, he has worked for them for over 25 years, if that helps. I thought he should be able to exercise FMLA leave after August 1st when they say his Worker’s comp will stop paying out. Am I correct? He’s really worried, this is putting a major stress on him. I also don’t understand how they can cease worker’s comp when he’s still technically injured…

We are in Idaho, and yes, he is over 50! I just thought he should be entitled to his 12 weeks of unpaid FMLA leave if he’s still not recovered and he’s worried about getting fired. He’s also a supervisor at the transportation department, if that helps any…

Also, if they offer him light duty, don’t they have to pay him a fair amount, if not what he would be making doing his regular job? And if they don’t, doesn’t workers comp make up the rest so he’s making his regular wage? That’s what happened with my husband when he was on worker’s comp 2 years ago, but that was in a different state.

Answer:  Your father-in-law is in a protected class because he filed a workers’ comp claim, therefore it is illegal to fire him.  His boss cannot force him to return to work.  Only a doctor can release him.  He needs a consultation with a workers’ comp attorney.  Click here to find a pre-screened employment law attorney in Idaho.  There’s no way your FIL will be able to fight this on his own. 

In addition, since he’s a state employee, he should go to his union rep and discuss what the boss is trying to do to him.

Your FIL needs to sit down and document everything, including them trying to force him in going back to work.  Documentation of events is pure gold should this case go to court.  It’s also an excellent leverage tool to settle out of court.