When Can You Terminate An Employee Who Was Injured On The Job?

The short legal answer is “It depends!”

First, as a rule of thumb, if one of your employees is injured on the job, you should contact your worker’s compensation insurance carrier and your corporate counsel. One question that typically gets asked by employers is, “How long do I have to keep the job open for the injured worker and when can I terminate the worker’s employment?”

The Labor Code §132 CA states that an employer cannot discriminate against an employee who is making a worker’s compensation claim. However, the Labor Code also states that an employer does not have to create a position for an injured worker that doesn’t exist. In other words, if your employee gets injured on the job and cannot return to do the duties he/she was hired to perform, the employer does not need to create a new position. An employer must keep the position open for a “reasonable” amount of time before advising an injured employee that there is no suitable position available to accommodate his/her work restrictions.

Bottom line, an employer does not need to keep open a position for an injured worker on disability forever.

Nonetheless, we recommend consulting with your attorney should an employee be injured on the job before any action is taken with respect to his/her employment.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.