Implementing policies for hiring and firing employees with work injuries

Disaster strikes and your employee suffers an injury at work. You know the workers compensation statutes and regulations apply to guide how you handle the work injury, but do you understand how employment laws also impact your situation? Be prepared by instituting policies for hiring, disciplining and terminating employees to avoid exposures when the injury in your workplace occurs.


Without strict hiring policies, it is easy for employers to unknowingly have employees, which would result in worker’s compensation liability. Consider the following:

Are you hiring an employee as defined by the Worker’s Compensation Act? An employee is anyone under the service of another, under any contract of hire, express or implied, with some exceptions.

When does an employer become subject to the Worker’s Compensation Act? You are a covered employer if you either usually employ three or more employees for services performed in Wisconsin or, if you usually employ fewer than three employees, yet paid wages (which do not have to be monetary) worth $500 or more in any calendar quarter for services performed in Wisconsin.

Are you exempt from worker’s compensation exposure by calling the individual you hire an independent contractor? It is not enough to have an employee simply sign an agreement designating the employee as an independent contractor. The worker’s compensation statute contains a detailed list of nine requirements the employee must meet in order to be considered an independent contractor for purposes of worker’s compensation. A mistaken designation can be very costly. Beyond liability for any injuries sustained by that person, you could also be liable for injuries sustained by anyone working for that alleged independent contractor. There is also potential liability for operating as an uninsured employer if you do not properly classify your employees.


Understanding the worker’s compensation and employment laws and having policies in place will help you make sound employment decisions. You may consult a workers compensation lawyer if you have any questions about your benefits and rights as an injured employee.

If an employee sustains a work-related injury that is his/her fault, can you deny the worker’s compensation claim? The employee is entitled to worker’s compensation benefits regardless of fault and has the right to hire his/her own work site accident attorney if necessary.

Can worker’s compensation benefits be reduced if the employee violated a safety procedure? Sometimes. The statutes allow for a 15% reduction (up to $15,000) in benefits if the injury is caused by the failure of the employee to use safety devices, failure to obey any reasonable safety rule, or intoxication. In order to prove this claim, the policy must be uniformly enforced.

If an employee is suspended after a compensable work accident, is the employee entitled to receive temporary total disability benefits during the suspension? Normally, but there are limited exceptions. To determine if an exception applies, you must address the reason for the suspension. Consider disciplining/suspending the employee after the employee returns to work to avoid this situation.


Beware of the unreasonable refusal to rehire penalty. Any employer who, without reasonable cause, refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee’s physical and mental limitations, has exclusive liability for up to one year’s wages. The employer has exclusive liability to defend or pay, as well as the liability under the Wisconsin Fair Employment Act and federal employment laws.

When terminating an employee who is off work due to a work injury, do you need to consider the employee’s Family and Medical Leave Act rights? Generally speaking, you cannot terminate an employee while on FMLA (unless the employee would have been terminated even if he/she had not been on leave). It is inadvisable to terminate an employee who is off work due to a work injury just because the employee exhausted his/her FMLA eligibility.

The Americans with Disabilities Act and WFEA also apply to employees who sustained a work injury. A disabled employee is entitled to reasonable accommodation. Extended leave may be a reasonable accommodation. It can be difficult to prove that extended leave causes an undue hardship. It is inadvisable to have a blanket policy that an employee is automatically terminated after a leave has been exhausted. Yet an indefinite leave of absence is generally not a reasonable accommodation. To assess if termination is appropriate, consider the following: Will extended leave cause an undue hardship? Have all reasonable accommodations been considered (i.e., job restructuring, extended leave, part-time schedule, reassignment of duties)?

When implementing your policies regarding employees with work injuries, be sure to consider your obligations under the worker’s compensation and employment laws.

Maryeve Heath and Mary Beth Hughes are attorneys in the Human Resources Law Practice Group at Whyte Hirschboeck Dudek S.C. in Milwaukee.

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