A plaintiff who alleges that his employer terminated his employment in retaliation for filing a workers’ compensation claim is entitled to proceed to trial, according to a recent decision by the Third District Court of Appeals, Ortega v. Engineering Systems Technology, Inc. (Fla. 3d DCA, January 20, 2010). The Ortega case provides a good opportunity to explore the contours of section 440.205, Florida’s workers’ compensation retaliation statute.

The plaintiff in the case, Ricardo Ortega, fell off a ladder on October 31, 2006 while working for his employer, Engineering Systems Technology, Inc. Ortega broke his wrist, and the employer’s workers’ compensation carrier was notified. Ortega was put in a “no work” status while he received therapy. Three months after his accident, on February 1, 2007, Ortega’s doctor authorized him to engage in the “limited use of [his] injured hand” with a twenty pound weight restriction. On the same day, Ortega asked his boss, Enrique Borja, if he could return to work. Borja told Ortega the company had no light duty for him and to come back when he had no limitations. On April 12, 2007, Ortega’s doctor released him to work without restrictions. Four days, later, Borja told him, “I don’t have work for you… I removed you from my staff two months ago.” But around the same time, Borja also stated that he would take Ortega back when he was sufficiently recovered.

Borja sued Engineering Systems under section 440.205, Florida Statutes, which provides:

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The trial court granted summary judgment to Engineering Systems, and Ortega appealed.

On appeal, the Third DCA ruled that there were genuine disputes of fact as to whether Ortega was fired, or whether he failed to request a return to duty; and whether, if Ortega was fired, it was in retaliation for his pursuit of workers’ compensation benefits. The court rejected the employer’s argument that Ortega’s failure to provide his employer with a Division of Workers’ Compensation Form DWC-4, releasing him to return to work, provides a complete defense to a retaliation claim under section 440.205.

So what can Florida employers learn from the Ortega decision? Perhaps the most important lesson is to do what Engineering Systems and Borja apparently did not do: adopt a clear policy authorizing the termination of employees who are unable to work for a period of time (e.g. three months), and apply the policy decisively and consistently. (For employers covered by the FMLA, make sure the policy is compliant with this statute.) It seems likely that Engineering Systems did not have a clear policy governing such situations. It is clear that Borja was not decisive in terminating Ortega or in consistently delivering his message to Ortega.

Suppose, however, that Borja had told Ortega on February 1, 2007 that in accordance with company policy, his employment was terminated because he had been unable to perform his job for three months. In Pericich v. Climatrol, Inc., 523 So. 2d 684, 685 (Fla. 3d DCA 1988), the Third District Court of Appeals held that section 440.205:

only prohibits the retaliatory discharge of an employee “by reason of” the filing of a workers’ compensation claim. The statute cannot be interpreted to prohibit the discharge of an employee for any reason once the employee has filed or pursued a workers' compensation claim. Employers still retain their traditional right to terminate employees for legitimate business reasons, such as unsatisfactory job performance or excessive absenteeism.

And in Edwards. v. Niles Sales & Service, Inc., 439 F. Supp. 2d 1202, 1230 (S.D. Fla. 2002), a federal court, citing Pericich, held that “[w]ithout question, firing an employee because the employee has been unable to work for approximately three months constitutes a legitimate business decision[.]

So, Borja could have lawfully terminated Ortega on February 1, 2007. If the company’s policy provided for termination after a three-month period of incapacity, and Borja terminated Ortega decisively in accordance with this policy, it is likely that the Third DCA would have upheld the trial court’s summary judgment order.

The point here is that section 440.205 does not give an employee a right to be restored to his job when he returns from leave from a work-related injury. Nor does it give an employee a right to work in a light-duty capacity. The statute only gives an employee a right to be free from retaliation because he has filed a workers' compensation claim. These issues can become blurred, as they were in Ortega. But by adopting a clear policy stating that an employee will be terminated after a period of inability to work (for any reason), and applying that policy decisively, employers can avoid costly litigation under section 440.205.