Court Vacates Discrimination Award

The Maine Supreme Court has just decided that, when an employer terminates the employee because he is unable to return to work at all, the employer is not guilty of discriminating against an injured employee under §353 of the Act, but this precedent may apply only to other cases with similar facts.

In Lavoie v. Re-Harvest, 2009 ME 50, Lavoie injured his back at work and could not perform his regular job or even a light duty assignment Re-Harvest designed specifically for him. Re-Harvest voluntarily paid Lavoie total incapacity and medical benefits, but within four weeks after his injury, Re-Harvest terminated his employment (and his health insurance) and gave his job to another worker. Lavoie remained incapacitated for a year, before returning to work elsewhere.

Lavoie filed a Petition to Remedy Discrimination (among other petitions), and HO Goodnough granted it, awarding Lavoie the cost of his health insurance and attorney’s fees. HO Goodnough found that Re-Harvest had no specific written policy regarding termination of injured workers," and that at the time of termination "it was not yet known how long it would take the employee to recover a work capacity." He found that the termination was discriminatory because it was based on Lavoie's "status as an injured worker unable to perform light duty work."

Re-Harvest appealed and the Court vacated the Board's decision that the employee's termination was "rooted substantially or significantly in the employee's exercise of his rights under the Worker's Compensation Act." The Court found that the Act does not "guarantee continued employment status to the employee who cannot work." The Court agreed that the "proximity in time between the assertion of a claim for workers' compensation benefits and the adverse employment action may constitute circumstantial evidence of discriminatory intent," but if an employee cannot perform any work and there is no evidence that is likely to change in the near future, the employer has no obligation to continue the employee's employment.

The Court also noted that Re-Harvest has fewer than 20 employees, that the employee did not file a Petition for Reinstatement (because he could not work), that the employee did not claim that he could return to work soon, and that the employee in fact remained out of work for a year. The Court also noted, however, that other provisions of Maine and federal law might "allow a longer period of leave" before termination.

We recommend against reading too much into this decision. The result in this case may have been different if it had involved a larger employer with more opportunity for finding suitable light-duty work for its injured employees, or if the employer had not paid worker's compensation benefits voluntarily, or if the employee’s doctor had suggested, or the employee had simply claimed, that he "expected to regain a work capacity soon." We also recommend that employers establish appropriate written guidelines for termination of employees who cannot return to work following an injury, whether work-related or not.

Please let us know if you have any questions.

Kevin Gillis
Tom Getchell
Mike Richards
Dan Gilligan
TROUBH HEISLER
Attorneys at Law

P. O. Box 9711
511 Congress Street
Portland, ME 04104-5011
(207) 780-6789