New Hampshire’s worker compensation law provides an employee with a work related injury to reinstatement to his prior job for up to 18 months from the date of injury once the injured employee has recovered enough to return to work. This obligation is to all New Hampshire employers who have five or more employees. Obviously, that is a long time for an employer to be with merely a temporary replacement for the injured employee. Often good employment candidates are looking for long-term employment and not just a temporary employment that is dependent on when an injured employee recovers. As a result, the good job candidates may not be available to fill a temporary position, leaving less desirable candidates.
However sometimes the injured employee did something or failed to do something around the same time as the injury for which he could be fired. The New Hampshire Supreme Court has determined that if the employee had legitimately been fired for cause then he is no longer an employee entitled to reinstatement once he is capable to return to work. For example: A line chef at a restaurant stole several cases of expensive food from the walk in freezer, yet unrelated to that theft, he accidentally spilled hot cooking oil on himself when a co-employee bumped into him, causing serious burns. When the General Manager of the restaurant asks the kitchen staff about the accident, another employee reveals that the injured line chef had stolen the food from the walk in freezer. The employer could legitimately fire the line chef for theft thereby being free to find a full-time replacement. It is also feasible that excessive tardiness or absenteeism can be a legitimate cause to fire the injured employee. However, none of these stated reasons can be a ruse attempting to hide the firing reason being: retaliation for the injured employee filing a worker compensation claim; or fear that the employee is prone to work related injuries. If it could be shown that the injured employee was actually fired because the boss is frustrated that he filed a worker compensation claim or thinks he has shown he is prone to accidents so it seems prudent to get rid of him, it is likely that the New Hampshire Department of Labor would find the employee entitled to reinstatement and the employer, not the employer’s worker compensation insurer, would likely have to pay the employee damages for the lost wages and possibly reinstatement if the employee wanted his job back.
In determining whether or not to fire an employee who has a work-related injury, it would be best to speak with the employer’s employment counsel to analyze the facts that support a firing for legitimate cause that does not entitle the injured employee to reinstatement when his work-related injury abates to the level that he is capable to return to work.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].