From time to time, employees sustain injuries - either occupational or non-occupational - which involve them having a prolonged absence from work.
Often, a number of these employees have major difficulty in recovering enough to be able to return to their former jobs within a suitable time-scale. As a result, employers must consider how to terminate the relationship without infringing federal or state law.
Most employees want to get back to work as soon as possible after an injury. No one expects to be fired from work after returning from a painful recovery. State and federal laws protect workers from unjust and illegal firings based on breach of contract, various forms of discrimination, employer retaliation and disability.
In most states, any employee is liable to be terminated at the will of the employer, provided it is not for a reason prohibited by law, public policy or a contract right. An employer cannot terminate an employee because the employee has filed a workers’ compensation claim, or has a health condition that constitutes a disability; has taken a qualified leave of absence for a serious health condition, or has rights under a labor agreement or employee handbook. Montana is the only state which requires an employer to have just cause to fire an employee, once the employee has completed a probationary period.
The U.S. District Court for the District of Kansas recently ruled that a railroad employee with carpal tunnel syndrome who re-injured his hands at work could pursue his wrongful discharge claim even though he chose not to return to work when instructed.
Millennium Rail Inc. employed Danny Smith in February 2012 as a repairman/welder to fix rail cars. According to Millennium Rail, Smith was an inefficient worker and during the twelve months from January 2013 the company wrote him up three times for being inefficient - and suspended him for three days. The next month, he took approved leave under the Family and Medical Leave Act (FMLA) to have carpal tunnel surgery and returned from this leave with the same pay, title and responsibilities as before. Soon after returning to work, he fell and re-injured his hands. Smith's workers' compensation attorney sent Millennium Rail a letter seeking coverage for surgery related to the fall. Smith's doctor sent Millennium Rail a note stating that until Smith had surgery, he would be unable to use the tools essential to performing his duties. At this time, Smith and another employee - Lee Davis - applied for a switchman position with the company. Millennium Rail selected Davis for the position and Smith was left in a job that he was not able to do.
Smith submitted FMLA paperwork to take leave to have the surgery but did not confirm that the paperwork was approved. Millennium Rail had Smith assessed by another physician, who was of the opinion that she could not detect any sign of pain or weakness in his hands and that Smith could work without any restrictions. No third assessment was undertaken.
On April 1, 2014, Smith attempted to take FMLA leave. He moved to Oklahoma to stay with his brother as he could not afford housing while not working - and his FMLA paperwork was never processed, although it was apparently discussed internally at Millennium Rail. The company's compliance and claims specialist wrote that Millennium Rail's doctor believed Smith could return to work and that the company either needed to bring him back to work or terminate him.
On April 10, Smith was sent a letter instructing him to return to work on April 16 or he would have voluntarily resigned. Smith did not receive the letter until April 15 and as he realized that he could not return to work he did not respond to the request, so therefore was deemed to have resigned. He filed claims against Millennium Rail under the Americans with Disabilities Act (ADA) and the FMLA and under Kansas law for workers' compensation retaliation and violations of OSHA and also sued his supervisor under the FMLA. Millennium Rail sought summary judgment against Smith's claims and to bar Smith from receiving damages.
The court granted summary judgment against Smith's ADA claim for failure to accommodate him by promoting him to the switchman position, finding that Millennium Rail legitimately believed Davis to be more qualified. They also dismissed Smith's OSHA retaliation claim, finding that he had not submitted an OSHA claim before his termination.
However, the court denied summary judgment as to the remaining claims. They found that Smith could establish that he was constructively discharged by Millennium Rail as Millennium Rail's requirement that he return or quit was not clearly supported by medical evidence and supported a potential claim of constructive discharge.
