1. To Fire or Not to Fire?
Even at will employees have protections to limit an employer’s right to fire.

2. OSHA limits firings for mandatory post-accident drug test results
II. OSHA regulations prohibit an employer from taking any adverse employment action against an employee on the basis of employer mandated post accident drug tests.
An employer in a state like Missouri can use the results of a mandatory post accident drug test to reduce or eliminate any compensation under the Workers’ Compensation Act if the employer has a written drug-free workplace policy and the employee violated that policy.
OSHA regulations, however, would likely prohibit an employer from going beyond the reduction or elimination of compensation benefits by terminating the employee’s employment because of a positive drug test result without additional evidence that employee’s intoxication caused his work-related injury or accident.

3. The law bans firings based on an injured workers pursuing his legal rights
III. The workers’ compensation statute prohibits the termination of a worker’s employment in retaliation against her or his pursuing rights, such as medical treatment, total temporary disability, or permanent disability benefits.
In 2017, the legislature heightened the burden of persuasion that an employee must prove to win a worker’s compensation retaliation claim.
It replaced a contributing factor by the motivating factor as the employee’s burden of persuasion.
1. Employee’s protected status actually played a role in the adverse action and
2. That status must have had a determinative influence on it.

4. Work-related injuries pose thorny legal issues
IV. The Workers’ Compensation Act gives employers an incentive to put injured workers back to work to reduce their exposure to additional disability payments.
The FMLA may give injured workers the right to take unpaid leave instead of resuming work on light duty.
The ADA and the MHRA may require employers to accommodate an injured worker’s disability.

5. Employers must employ at least 50 employees for FMLA coverage.
IV. The FMLA limits the scope of its coverage to employers that employ a total of at least 50 employees.
A FMLA eligible employee must work at a site either
Where the employer employs at least 50 employees or
Located within a radius of 75 miles of other work sites where the employer employs a combined total of at least 50 employees.

6. FMLA eligible injured workers may take up to 12 weeks of unpaid leave.
V. FMLA eligible employees may take up to 12 weeks of unpaid leave time in any period of 12 consecutive months.
A. The eligible reasons for FMLA leaves include one that may also pertain to injured workers, namely:
1. to receive medical treatment for a serious health condition and to recuperate from such a condition that incapacitates the employee.
B. At the end of a FMLA leave, the employer must reinstate the injured worker to the same job as she or he had immediately before the leave started.

7. A FMLA eligible worker must meet length of service and hours worked requirements.
VI. An eligible employee must have completed at least 12 months of employment with the employer, although not necessarily 12 consecutive months.
A. An eligible employee must have worked at least 1,250 hours in employment with the employer during the preceding 12 months immediately before the leave starts.

8. Only some work-related injuries involve a serious health condition.
VII. A serious health condition involves an illness or injury that requires inpatient care or continuous treatment by a health care provider.
A. In patient care means an overnight stay in a medical facility.
B. A serious heath condition must cause a period of incapacity of at least three consecutive, full days.
C. The employee must receive treatments at least two times during the first 30 days of incapacity.
D. Alternatively, continuous treatment by a health care provider must include at least one visit to the provider and a regimen of continuing treatment under a health care provider’s supervision.
E. The in person visit to the health care provider must take place within seven days of the first day of incapacity.

9. The MHRA and ADA prohibit disability discrimination.
VIII. The Missouri Human Rights Act and the Americans with Disabilities Act prohibit discrimination against persons with disabilities.
A. The MHRA covers employees with six or more employees.
B. The ADA imposes its obligations on employers with 15 or more employees.
C. Both of these laws require employers to make reasonable accommodations to an employee’s disabilities.

10. Only some injured workers have disabilities.
IX. The ADA and MHRA define disabilities as a past, current, or perceived physical or mental impairment that substantially limits a major life activity.
A perceived disability means an employer’s regarding an individual as having a physical or mental impairment.
B. Effectively, if a physical or mental impairment substantially limits a major life activity or a major bodily function for six months or more than she has a disability.

11. Injured workers may qualify for FMLA leaves and reasonable accommodations.
X. Injured workers may also have serious health conditions and mental or physical impairments that substantially limit major life activities or major bodily functions.
A. A worker has a serious health condition If his injury requires medical treatment initially followed by a continuing course of treatment and a follow up visit at least 30 days after the initial treatment.
B. An injured worker has a disability if her injury substantially limits a major life activity or a major bodily function for more than six months.

12. The workers’ compensation law requires neither leaves of absences nor job reinstatement.
XI. The workers’ compensation law lacks any provisions granting leaves of absence or requiring employers to reinstate injured workers to their jobs.
A. The law’s prohibition against retaliation, as a practical matter, prevents employers from terminating the employment of injured workers hastily after they suffer an injury.
B. The workers’ compensation law, however, allows employers to terminate the employment of injured workers because of their unavailability to work.

13. Injured workers may have a right to FMLA leaves.
XII. Injured workers may have FMLA rights.
The employee must have a serious health condition.
A FMLA eligible injured worker may take a leave of absence for up to 12 weeks during any 12-month period.
The employer must continue the employee’s health plan participation during a FMLA leave on the same terms as the employee participated before the leave.
D. A FMLA eligible worker has a right to reinstatement in the job that he had immediately before his leave began.

14. Injured workers may have a right to reasonable accommodations.
XIII. An injured worker may also have a disability.
A. If an injured worker has a disability, the employer must make reasonable accommodations to his disability.
B. An extended leave of absence beyond even the FMLA’s 12 weeks can provide a reasonable accommodation.
C. The obligation of reasonable accommodation involves an accommodation of the injured worker’s job that he held immediately before his need for an accommodation.
D. If an employer accommodates an injured worker’s disability by granting an extended leave of absence, then it must reinstate the employee to the job that he had when he suffered his injury.
E. Employers have no obligation to continue the employee’s health plan benefits during such a leave.

15. Light duty assignments raise workers’ compensation, FMLA, and disability discrimination issues.
XIV. Neither the ADA nor the FMLA specifically address light duty.
A. The FMLA guarantees an employee’s reinstatement to his original job or a transfer to a job with equivalent responsibilities, pay, and benefits.
The employer’s reasonable accommodation obligation attaches to the job that the employee had when her or his injury occurred.
C. Light duty jobs satisfy neither the FMLA’s reinstatement obligation nor the ADA’s reasonable accommodation duty.

16. Employers may lawfully cut the disability pay of injured workers that refuse light duty assignments.
XV. The employer may reduce such an injured worker’s temporary total disability benefits in accordance with the worker’s compensation law.

17. FMLA eligible injured workers may refuse light duty assignments and take FMLA leaves.
XV. The FMLA eligible injured worker can decline a light duty job and take unpaid FMLA leave instead.
A. The injured worker then has a job restoration right when his FMLA leave ends.
B. If such a worker cannot return to work at the end of his FMLA leave, then he loses his job restoration right.

18. Light duty assignments may involve a reasonable accommodation.
XVI. Under the ADA, light duty may provide a reasonable accommodation as a temporary transfer to a job that the injured worker can do despite his disability.
A. Employers have no duty to create jobs for employees with disabilities.
B. The ADA recognizes the right of employers to limit light duty assignments to a specific length of time.
C. If an employer assigns an injured worker to a light duty job, then it must make reasonable accommodations to the light duty job.
D. If an employer sets no maximum length of time to a light duty job, then it risks its inadvertent redefinition of the injured worker’s essential job functions to those of the light duty job.

19. An injured worker’s ability or inability to return to work poses distinct workers’ compensation, FMLA, and disability discrimination issues.
XVII. Depending on the circumstances of an injured worker’s leave of absence, she may a right to job restoration.

20. Injured workers have no right to continued employment under the workers’ compensation law.
XVIII. The worker’s compensation law provides no reinstatement right to injured workers.
A. The law prohibits discrimination or retaliation against an injured worker because she or he exercised her or his statutory rights.
B. Employers may terminate the employment of injured workers because of their unavailability for work.

21. Injured workers have a reinstatement right at the end of a FMLA leave.
XIX. If an injured worker uses FMLA leave, then she has a reinstatement right at the end of her leave.
A. She must have the ability to do the essential job functions of her job safely without posing a risk of harm to herself or others.

22. Injured workers’ reasonable accommodation rights may include job reinstatement.
XX. If an employer provides a leave of absence as reasonable accommodation, then the injured worker has a right to reinstatement in her original job at the end of her leave.
Like the FMLA, the ADA restoration right requires the employee to be able to do her original job’s essential functions safely without posing an immanent risk of harm to herself or others.
B. The employer’s reasonable accommodation obligation may require it to adjust the marginal functions of the job but not the essential job functions.
C. An alternative reasonable accommodation could involve the injured worker’s reassignment to an alternative vacant job.
D. If the alternative job pays less, the injured worker would receive the lower pay rate.