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Can I Fire An Employee Who Got Hurt On The Job?

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Question: I have an employee who fell on the job without anyone around to witness the fall. We sent him right to occupational health for treatment. Our company policy is that with any accident the employee automatically must undergo a drug test. (We also have a company-wide random drug test policy and pre-employment test which the employee had passed on hire.) The employee refused the test because he claimed he felt sick. When the employee finally took the test seven days later, it came back positive.

We believe we cannot fire the employee, because we are concerned that he will simply stay on workers compensation forever. When we contacted the workers compensation division in our state it replied that they can’t do anything because the drug test was seven days later than the accident. Our company has been complying with workers compensation laws by making new job descriptions so he can come back to work and he hasn’t come back yet. Do we have any rights and can you steer us in the proper direction?

Answer: Actually, an employer can terminate an employee who has been hurt on the job, so long as the reason for termination isn’t because the employee filed a workers comp claim. If an employee is unable to work, an employer is not required to keep him employed. The employee, or ex-employee, will continue to receive workers comp benefits, if he is otherwise qualified, regardless of whether he remains employed. I’d certainly recommend terminating this employee since he failed the drug test, even a week after the incident. By the way, it’s curious that the employee was able to evade taking the drug test initially because he felt sick; the drug testing facility should be queried as to why it let him get away like that. Even though workers comp may be reluctant to end his benefits because of when the test did occur (and who ever heard of a workers comp carrier aggressively advocating for the employer!), they may be able to do something about the fact that the employee hasn’t availed himself of the opportunity to return to work. Then too, the employer should consider whether they want him back, knowing he has a history of drug use.

This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at

Workers’ compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee’s right to sue his or her employer for the tort of negligence. While workers’ compensation statutes vary from state to state, they are designed to ensure that employees who are injured or disabled on the job are not required to cover medical bills related to their on-the-job injury, and are provided with monetary awards to cover loss of wages directly related to the accident, as well as to compensate for permanent physical impairments. The intent of these statutes is to eliminate the need for litigation by having employees give up the potential for pain and suffering related awards in exchange for not being required to prove tort (legal fault) on the part of their employer.

Brooke Duncan

Posted In: Legal

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