Lawyers say workers’ comp retaliation claims are increasing

According to an article in Business Insurance (September 14, 2015), injured employees are more likely to win retaliation claims because comp cases have a lower burden of proof and there is empathy for the injured worker. It is not only the termination of an employee that triggers a claim; it could be any employment action that allegedly results from the employee’s claim, including reduction in benefits and reassignment to a different position or location.

Common mistakes made by employers:

  1. Using the injury as a way to get rid of a problem employee.
  2. Inflexible policies about the expiration of FMLA leave.
  3. Failure to accommodate requests for additional time off or demonstrate that the absence causes undue hardship.
  4. Alleging violation of attendance policies that have not been enforced consistently.
  5. Poor communication with injured employee, leading to uncertainty and fear.
  6. Inappropriate emails, text messages or phone conversations that suggest malingering or threaten disciplinary action and reflect ineffective training of managers and supervisors.
  7. Discussion among managers and co-workers that the employee “is faking it.”
  8. Delays in processing claims.
  9. No or poor return-to-work programs.

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