A small business owner had a key employee who was injured in the course of his employment. The injury required surgery, which resulted in the injured worker being unable to work for an extended period of time. Having filed a claim for workers' compensation benefits, the employee is currently receiving temporary total disability benefits, pursuant to the Ohio workers' compensation law. The employee has been unable to work for a period exceeding one year.

Because the injured worker was significant to the owner’s operation, his inability to work has adversely affected the company in its ability to meet production demands from its valued customers. The employer is clearly in a quandary. It is not known when this valued employee can return to work or, even if he were able to return to work, whether his physical capabilities will be restricted. So, can the small business owner terminate the injured worker and replace him with another person capable of assisting the company and its production in order to meet customer demands?

Yes, the small business owner can terminate and replace the injured worker. However, there is a potential consequence of that termination. Pursuant to Ohio law, an injured worker may file a lawsuit claiming that the termination was a result of the employer's retaliation for his filing a workers' compensation claim. Yet, in this particular case, there are several defenses that can be asserted in proving that the termination was not retaliatory in nature but for the necessity of preserving the business.

Certainly, the fact that the employer in this case waited an extended period of time before terminating the injured worker shows that the termination was not a rash decision based on the injured employee's filing a workers' compensation claim. Also, the employer can demonstrate that his business had been damaged as a result of the prolonged absence of this key employee, and that in order to maintain its production and, therefore, its relationship with its customers, a replacement had to be hired.

Although the example above is pretty straightforward, employers must take into consideration as to whether the ADA applies and whether certain accommodations could be made to the injured worker in order to bring him back to work.