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Yes, you can fire the guy
on workers comp leave
Seventh Circuit reminds you
that if your policy and facts
are legitimate, there is
no retaliatory discharge

    Employers spend too much time wrestling with the issue of dismissal where an employee with a workers comp injury: takes FMLA leave, the leave runs out, but his doctor keeps him off work past the deadline to return from the FMLA leave.  The situation, a federal appeals court tells us, is not as bleak as it looks.

    Brian Dotson worked for BRP U.S., Inc., where the written policy was to fire anyone who did not report back to work following the use of FMLA leave.  No exceptions.  Dotson was due back by the end of February, but his doctor did not release him until August.  BRP fired Dotson under this policy, even though the leave was from an occupational injury, and he was still receiving workers compensation benefits.  Apparently a lawyer he consulted saw dollar signs, so Dotson sued in federal court, invoking retaliation under the FMLA and Illinois common law retaliatory discharge tort. Dotson v. BRP U.S., Inc. F3rd_, 2008 WL 746846 (7th Cir. March 2008).

    The Seventh Circuit affirmed the district court's entry of summary judgment in the employer's favor.  The court made several points, but our focus today is on those treating the retaliatory discharge tort issue:

    Employers can discharge employees for excessive absenteeism, even if the absenteeism is attributable to a compensable injury.

An employer may count workers comp time off against the twelve-week FMLA time allotment.

    An employer that in writing strictly defines the obligation to report to work after FMLA leave runs out (or face the consequences) is not subject to any obligation to create exceptions for workers comp or to allow a delinquent return to work.  Allowing for no discretion in such employee handbook text is legal.

    An employer in BRP's situation could be in a jam if its own IME had taken steps that would have caused Dotson to delay medical or surgical care and jeopardize his schedule to return to work promptly after the FMLA leave expired.

    Where, under its no-discretion policy, an employer fires an employee on workers comp for failure to report back to work following FMLA leave, there is no causal link between the workers comp and the dismissal - for purposes of a common law case for retaliatory discharge.

    Check your FMLA policies and procedures on the point of failure to return on time.  You are not obligated to create exceptions, and there are no employee relations dividends paid to you for doing so.