By Kathy Bray, Esq.

After an employee is injured at work, many employers are at a loss regarding how to address employment performance concerns.

Disabled status does not excuse performance expectations

Simply because an employee sustained a work injury does not excuse that employee from performing the duties and expected standards of the job.

You can turn to the Americans with Disabilities Act  (ADA) for guidance in evaluating performance concerns. Ask yourself:

• Is the performance deficiency due to a physical inability to do the job, which may require some reasonable accommodations or light-duty consideration for a period of time while the employee continues to recover from the injury?
• Or, is the substandard performance due to factors unrelated to the work injury or impairment?

Once you’ve determined the cause of or reason for the poor performance, the next question should be: How are other employees treated when similar performance issues arise? The injured employee should be treated consistently.

After the performance problem is evaluated and a plan of action decided upon, it’s important to take prompt action. Problems can arise later if the employee’s performance concerns are not addressed right away. If you later raise the alleged deficiencies as a cumulative reason for discipline or termination, the employee may have reason to cry “pretext” because your silence implies approval and condones the performance.

Remember the steps:

• Is performance concern due to limitation from the work injury?
• If not, then how are other employees treated when similar concerns arise?
• Finally, promptly and properly document the concern, and address with the employee in an appropriate manner, consistent with the employment practices and policies.

Rule violations punishable — work injuries aren’t

Sometimes an employee is injured while violating a workplace rule. For example, imagine an employee sustained a back injury while carrying the garbage to the outside dumpster, but failed to complete the maintenance log during the shift to document custodial activities. If other employees are written up for failure to document tasks in the maintenance log as part of their jobs, then it is fair and appropriate to write up the injured employee, also. What you may not do, however, is discipline the employee for sustaining an injury. Failing to document in the maintenance log is not the injury; suffering an injury is not the action subject to punishment.

Perhaps an employee is injured while driving the forklift at excess speed. Negligent or reckless behavior may still result in a compensable work injury. Such behavior may separately be the subject of discipline, and that discipline at times may even include termination.

Document employee concerns immediately

As soon as an employer recognizes that a significant disciplinary action or termination of the injured employee is necessary, you should thoroughly review the circumstances of the disciplinary event and the employee’s personnel file to identify whether any basis for employment law claims may exist. If any basis for concern is found, you should immediately contact employment counsel to assist in evaluating the potential risks and alternative courses of dealing with the situation.

You must insure that the separation decision is based upon valid reasons, and that the reason for discipline or termination is well-documented. If the reason for discipline or termination of an employee is merely a pretext for treating the employee differently or more harshly because he or she had a work injury, you may face legal liability exposures for discrimination or retaliation on both the state and federal level.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.