After an employee experiences an on-the-job injury, employers must also
address the daunting reality of potentially dealing with an associated
Workers' Compensation retaliation claims are totally separate from
the employee's claim for benefits and protection, and are filed as
a civil matter in state court pursuant to section 440.205, Florida Statutes.
Consequences of defending these claims in litigation include attorneys'
fees and costs, potential exposure for the plaintiff-employee's lost
wages, associated pain and suffering damages, and in some cases, punitive
damages. In the event the matter does not successfully resolve, the claim
will likely be tried in front of a jury.
Subsection 205 states:
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.
See section 440.205, Florida Statutes.
Employers are sometimes blindsided by 205 claims, not realizing that otherwise
innocent actions of their agents and employees could be legally perceived
as retaliation. The injured employee does not even have to lose any money
as a result of a legally enforceable perceived retaliatory act.
If an injured employee has recently returned to work, ensure that any scheduled
shifts, light-duty assignments, or position description adjustments do
not appear to be a type of punishment. This might occur in situations
where co-workers and supervisors doubt the veracity of the employee's
initial injury or claim for benefits.
A perceived act of retaliation could also occur when the recently returned
employee is now assigned to less prestigious or undesirable tasks, making
them appear to be an example to coworkers that bad things happen to employees
who become injured on the job and make a claim for benefits (or take steps
in furtherance of an attempt to make a claim for benefits) pursuant to
Florida's Workers' Compensation Law.
What can employers do to minimize the potential of needing to defend against
this type of claim? An employment attorney can assist with developing
and then consistently implementing written policies and practices that
specify a protocol for assigning tasks and work schedules to recently
Employers can also periodically check in with the employee to ensure work
restrictions are properly recognized and that requested accommodations
are reasonably made. Be sure to be mindful that the employee's injury
and consequential adjustments do not impact their ability to qualify for
bonuses, promotions, or other benefits of employment regularly offered
to similarly situated employees who have not suffered an injury.
Rather than allowing a potential claim to sneak up on you, use your knowledge
of section 205 to intentionally and proactively create an example of non-retaliation.