I have an injured employee. On Feb. 22, He sustained knee injuries from a fall from a 6' step ladder.Unwitnessed. Has BWC claim going. Medical and Physical therapy bills only at this time. I have paid for any missed time. He has not been told not to work by DR. We are a small business. 5 total employees. Since Accident, he has become increasingly hostile. Poor attitude, evasive,arrogant. Refused to sign medical release form. I have growing concerns since I researched his BWC records. 14 claims with different employers since 2002. Last one only 4 months prior to being hired here. His attitude and insubordination have made things quite difficult. Business has recently slowed, and we can no longer absorb losses due directly to his situation. I must cut our payroll budget. I understand that laying him off makes him eleigible for the max payout from BWC. His other option is unemployment, but it would be considerably less money for him. One of my immediate questions is, what other recourse does he have? Can he sue for wrongful termination? Am I stuck with a high priced, uncooperative employee? Also, given his history of claims and animosity, I'm afraid to have him working here any longer for fear of him initiating a new, more severe injury claim. How can I get rid of this person? I have come to terms with the max BWC payout, don't work and collect workers comp, but should I be worried about further retaliation? Lawsuit?I have more questions, but this is all I can ask right now.Sincerely,Paul BuzaEnhanced Transmissions inc.
Country relating to Question: United States
State (if USA): Ohio
After finding history of claims, told him we were slow, take a few days off to rest his legs.
Thank you for using JustAnswer. I am researching your issue and will respond shortly.
Wrongful termination: probably not. Ohio is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). Since you only have 5 employees, he doesn't qualify for any Federal or state medical leave law. And under the Ohio Workers’ Compensation law and the Ohio Constitution, an employee is not allowed to sue the employer in negligence for the injury if that employer is current on its premium payments into the Workers’ Compensation system.
Now technically speaking he could sue for wrongful termination. Anyone can sue anyone for anything. A lawsuit is merely a legal complaint. It does not require that the person be right when the suit is filed. That is what the judges are for: making determinations of law. He just could not win.
As for unemployment, if he's unable to work, he wouldn't qualify for unemployment. One of the criterion for unemployment eligibility is that the worker is "ready, able and willing" to work, and actively looking for work.
If he's injured, he would not qualify until he was done with Disability.
Should I use lack of work, or just tell him to stay home and collect his BWC benefits ?
You can certainly use lack of work, or even the need to hire a new individual and inability to carry multiple people on the payroll. You don't have to pay someone for not working.
That's already happened, I had a talk with him last week about our need to hire a temp to pick up his slack
coincidently, after our talk, his PT notes stated "increased Pain"!!
I would like whatever I do to be the end of our work relationship.
The key is to make it absolutely clear that this is a termination, that you can no longer keep him on, and that the position will no longer be open.
Some "layoffs" are temporary, but you should let him know that it's permanent.
Ok, then, we say we can't keep you on any longer, please remove your personal property and go home. Collect your BWC benefits?
Certainly. Again, he doesn't have recourse against you for this if your premium payments were current, even though he might still try to allege that your actions were gross negligence (they weren't) and I would doubt that any attorney would take such a case anyway.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, and again, good luck to you!
Thank You, sir.
Licensed Texas General Practice Attorney
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).