The Workers’ Compensation Code 85 O.S. §301 et.seq. provides exclusive remedy to an injured employee for an on-the-job injury. Employers understand that they cannot terminate employment because an employee has filed a claim for an on-the-job injury. The termination prohibition extends to an employee who has not filed a claim, but who has retained a lawyer for representation about a claim, testified or is about to testify in a proceeding, or elected to participate or not participate in a certified workplace medical plan.
Employers may be less aware of a specific termination prohibition under the code. An employee receiving temporary total disability benefits, or TTD, cannot be discharged while receiving TTD “solely on the basis of absence from work.” For example, if an employee receiving TTD is terminated because he or she ran out of leave time, paid or unpaid, that termination would be “solely on the basis of absence from work.” Also, a policy that terminates an employee for being absent from work for a period of time could lead to a violation of the code.
The termination prohibition applies to the “period of temporary total disability,” 85 O.S. §341(B). Termination is prohibited when the employee has been awarded TTD, but is not receiving compensation in the form of TTD. Rather, the employee is receiving unemployment benefits by the Oklahoma Employment Security Commission or short-term disability benefits under an insurance policy provided by the employer.
It’s OK to fire an employee receiving TTD if an employer has a different reason for termination. However, the employer would be wise to have evidence supporting the decision. One example would be an affidavit from a supervisor stating that the employee was in violation of a published written rule. An employee fired for stealing is not being terminated because he or she is receiving TTD.
The period when an employee is receiving TTD is not a good time to decide that the employee never really performed well. Absent prior documentation of performance issues, a jury could decide that the employee was terminated because he or she was receiving TTD. A terminated employee can file a lawsuit. An employer found in violation of the code is liable for reasonable damages, actual and punitive. The employee is also entitled to be reinstated to his or her former position.
This article appeared in the September 6, 2012, issue of The Journal Record. It is reproduced with permission from the publisher.
© The Journal Record Publishing Co.
- Oklahoma Workers’ Compensation Code (PDF)
- Oklahoma Workers’ Compensation Court
- Oklahoma Employment Security Commission
- Roberta Fields’s professional bio and contact information
- McAfee & Taft’s Labor and Employment Group
About the author
Roberta Browning Fields is a trial lawyer and labor and employment attorney with the McAfee & Taft law firm. Her primary practice is focused on the representation of employers in all areas of employment law, including litigation in state and federal courts, in arbitrations, and before regulatory and administrative agencies such as the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL) and Oklahoma Human Rights Commission. She has successfully handled litigation involving claims of wrongful discharge, harassment and employment discrimination (based on race, age and disability) as well as disputes involving wage and hour matters, medical leave, confidentiality and non-compete agreements, employee handbook and company policy violations, and breaches of employment agreements.
As part of her employment practice, Roberta trains and counsels employers on a broad range of matters affecting the workplace, including hiring, discipline, terminations, policies and procedures, drug and alcohol testing, anti-discrimination and anti-harassment, employment contracts and confidentiality agreements, workplace safety, and the National Labor Relations Act. For companies who seek to remain non-unionized, she also provides counseling on union avoidance strategies.
A portion of Roberta’s practice is devoted to railroad law, public utility law and commercial litigation. She has successfully represented major railway, electric utility and telephone companies in lawsuits involving claims of negligence, environmental damage, asbestos exposure, wrongful death, and personal and property damage.
Roberta has been a featured speaker on various legal topics and has twice served on the faculty of the University of Oklahoma College of Trial Advocacy.
Prior to entering law school, Roberta worked as a correctional officer and as a case worker for the Oklahoma Department of Corrections for five years. In addition to her law degree, she holds a bachelor’s degree in social work and a master’s degree in sociology/corrections.