How to Avoid Workers' Comp Retaliation Claims

Employee Filed a Workers’ Comp Claim? Here are 5 Tips for Avoiding Retaliation Lawsuits

Workers’ compensation claims often result in staggering costs for employers, including the costs of escalating rates for workers’ comp insurance. As a result, employers may develop negative feelings toward the employees who file claims, and may even be tempted to fire, demote, or otherwise punish them—particularly if their job performance had already been faltering.

However, it is essential that organizations tread carefully when taking any actions against employees who have filed for workers’ comp benefits. Lawsuits for workers’ comp retaliation are on the rise, and may cost defendant organizations hundreds of thousands of dollars in damages and attorneys’ fees.

What is Workers’ Comp Retaliation?

Under the laws of nearly all states, including Arizona and California, employers are prohibited from punishing employees who exercise their statutory rights to workers’ comp benefits following a work-related injury or illness. Retaliation may occur when an employee files a workers’ comp claim—even if benefits are ultimately denied—and the employer subsequently takes an adverse action against the employee.
Although specific requirements may vary from state to state, a successful retaliation claim typically must contain the following elements:

- The employee was entitled to benefits under the applicable workers’ comp law.
- The employee filed a workers’ comp claim.
- The employer took an adverse action against the employee. Adverse actions include termination, demotion, moving the individual to a less desirable work location, or anything else that would likely deter employees from seeking workers’ comp benefits.
- The adverse action was taken as a result of the employee’s decision to file a workers’ comp claim.

What Can Employers Do to Avoid Claims of Workers’ Comp Retaliation?

While consulting an attorney or HR professional is the best way for employers to minimize liability, adopting these five practices will help your organization avoid violations that could lead to claims of workers’ comp retaliation:

Have an anti-retaliation policy that is clearly written in plain English and published in a place accessible to the entire workforce, such as the employee handbook. A few considerations to address in this policy include:

- Examples of prohibited retaliatory actions.
- Guidance for managers on how to properly interact with employees who have filed for workers’ comp benefits.
- The mechanism by which employees should report concerns about retaliation.

Scrutinize existing policies—both formal and informal—to ensure that none could be interpreted as deterring employees from filing legitimate claims for workers’ comp benefits.
Train all managers, HR staff, and employees on the organization’s anti-retaliation policy, making clear that retaliatory actions will not be tolerated and may be punishable by termination.
Make workplace safety a priority. Organizations may reduce the odds of employees filing workers’ comp claims in the first place by conducting regular safety training sessions, having procedures in place to minimize harm when injuries do occur, and partnering with risk management experts like Creative Business Resources. However, while managers should always emphasize the importance of safety, they must be careful to avoid rhetoric that could be interpreted as discouraging employees from filing workers’ comp claims or demonstrating a negative attitude toward those who sustain injuries.
Consider consulting an attorney or HR expert before making significant adverse employment decisions, such as termination—particularly when the affected employee has made a workers’ comp claim. In addition to explaining the nuances of workers’ comp retaliation law in your state, these specialists will be able to verify that your organization’s reasons for taking the adverse actions are legitimate and non-retaliatory.