Do I Have to Be Able to Return to Work to Bring an Alabama Retaliatory Discharge Claim?

Do I Have to Be Able to Return to Work to Bring an Alabama Retaliatory Discharge Claim?

One of the more confusing issues in an Alabama retaliatory discharge case arises when an injured employee who has not been medically released to return to his or her regular job is fired.  The Employer may argue: “We could not have wrongfully terminated this employee because the employee could not work anyway.”

At first glance, that argument sounds logical. If an injured worker cannot perform his or her job, how can the worker claim that the employer wrongfully terminated the employment?  The Alabama Supreme Court addressed this issue directly in Bleier v. Wellington Sears Co., 757 So. 2d 1163 (Ala. 2000), and the answer is important:

An injured employee does not have to prove that he or she was “willing and able” to return to work as part of the employee’s initial case for retaliatory discharge.

That does not mean the employee’s ability to work is irrelevant. Far from it.

The distinction made by the Alabama Supreme Court in Bleier is between whether the employee is protected from retaliation and what the employee may ultimately recover as damages. It can also become relevant to an employer’s legitimate defense for the termination.   That distinction can make the difference between having a retaliatory discharge claim and having no claim at all.

Alabama’s Retaliatory Discharge Law Protects Injured Workers

Alabama Code § 25-5-11.1 provides that an employee may not be terminated “solely because” the employee has instituted or maintained an action to recover workers’ compensation benefits.  As we discussed in Recommended Reading: What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law?, Alabama is generally an employment-at-will state. Section 25-5-11.1 creates an important statutory exception intended to protect employees exercising their rights under Alabama’s Workers’ Compensation Act.

But consider what could happen if an injured employee also had to prove that he was physically capable of returning to work at the time he was fired.

A worker could suffer a serious injury, undergo surgery, remain temporarily unable to work while recovering, and be fired while still under medical restrictions. If the inability to work automatically defeated a retaliatory discharge claim, some of the workers most seriously injured on the job could potentially receive the least protection from retaliation.

That is essentially the problem the Alabama Supreme Court confronted in Bleier.

What Happened in Bleier v. Wellington Sears?

Bleier suffered a work-related injury and subsequently brought claims for workers’ compensation benefits and retaliatory discharge.    The employer sought summary judgment on the retaliatory discharge claim in part because Bleier was physically unable to work. The trial court agreed. At that time, a line of Alabama Court of Civil Appeals decisions treated being “willing and able” to return to work as an essential part of an employee’s retaliatory discharge case.

The Alabama Supreme Court rejected that approach.

The Court recognized that an employee’s ability and willingness to work remains important, but concluded that making it part of the employee’s prima facie case would exclude a substantial group of injured employees from the protection provided by § 25-5-11.1.  The Court therefore held:

Being “willing and able” to return to work is not an element of the employee’s prima facie retaliatory discharge case.

Instead, the employee’s ability to work can become relevant to:

1. the employer’s defense to the retaliatory discharge claim; and
2. the amount and type of damages the employee can recover.

Bleier v. Wellington Sears Co., 757 So. 2d 1163, 1171-73 (Ala. 2000).

That distinction is extremely important.

Being Unable to Work Does Not Give an Employer Permission to Retaliate

Suppose an employee suffers a serious shoulder injury at work.  The employee reports the injury, receives authorized treatment and undergoes surgery. The doctor has not released the employee to return to the regular job.  While the employee is recovering, the employer becomes frustrated with the workers’ compensation claim and fires the employee because the employee pursued workers’ compensation benefits.

The fact that the employee happened to be unable to work at the time of the termination does not automatically make an otherwise retaliatory termination lawful.

That is one of the practical consequences of Bleier.  The Alabama Supreme Court explained that excluding disabled workers from the protection of § 25-5-11.1 would undermine the protection the Legislature created.

This is particularly important because the period following a serious injury may be precisely when an employee is most vulnerable.  The employee may be recovering from surgery, receiving temporary total disability benefits, attending physical therapy, awaiting another procedure, or operating under significant restrictions.

An employer cannot escape Alabama’s retaliatory discharge statute simply because the injured employee was not physically capable of performing the regular job when the alleged retaliation occurred.

But Bleier Does Not Require an Employer to Create a Job

There is another side to Bleier that is equally important.  Alabama’s retaliatory discharge statute does not require an employer to create a new position specifically for an injured employee, nor does § 25-5-11.1 itself require an employer to make special accommodations so that an employee who can no longer perform his regular job can remain employed.

The Supreme Court expressly recognized this distinction in Bleier.

For example, suppose a warehouse employee’s permanent restrictions prevent him from performing the essential physical duties of his former position. The employer has no other available position he can perform.  The employer is not necessarily required by Alabama’s retaliatory discharge statute to invent a new position for him.

And if the true reason for the termination is the employee’s inability to perform the available job—not the workers’ compensation claim—the employer may have a legitimate defense to a retaliatory discharge claim.

That brings us back to an issue we have repeatedly discussed in this series:

What was the real reason for the termination?

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case? 

“Unable to Work” Can Be a Legitimate Defense—or It Can Be an Excuse

This is where the facts become extremely important.  An employer may say “We didn’t fire her because she filed workers’ compensation. We fired her because she couldn’t perform the job.”

That may be completely legitimate, but the inquiry should not necessarily stop with the employer’s explanation.

Questions may include:

• What were the employee’s actual medical restrictions when the termination occurred?
• Had the employee reached maximum medical improvement?
• Was the inability to work temporary or permanent?
• What job did the employer contend the employee could not perform?
• Had the employer previously provided light-duty work?
• Were other injured or non-injured employees treated differently?
• Did the employer’s explanation for the termination change?
• What does the termination paperwork actually say?
• Did supervisors express frustration or hostility about the workers’ compensation claim?
• Did the employer follow its own policies?

These are the kinds of facts that can also overlap with the circumstantial evidence identified by the Alabama Supreme Court in Alabama Power Co. v. Aldridge.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a “Smoking Gun.”

The Timing of the Employee’s Inability to Work Can Matter

There is another nuance worth noting.

Justice Johnstone, concurring specially in Bleier, emphasized the obvious problem with allowing an employer to claim that it fired an employee for inability to work when the employee was merely recuperating from the work injury and had not yet reached maximum medical improvement.  His example was particularly straightforward: an employer should not be able to say it fired an employee because the employee was unable to work while the employee was in the hospital recuperating from the job injury.

That concurrence helps illustrate why these cases cannot always be reduced to the simple question: “Could the employee work on the day he was fired?”

The medical and employment circumstances surrounding the termination matter.

What If the Injured Employee Really Cannot Work?

This is where Bleier makes another important distinction.  An employee who was wrongfully terminated but was physically unable to work generally cannot recover lost wages for a period during which the employee could not have earned those wages anyway.

That makes sense.

Retaliatory discharge damages are intended to compensate an employee for harm caused by the wrongful termination. If the employee could not have worked regardless of the termination, the termination did not cause the employee to lose wages during that period; but that does not necessarily mean there are no damages.

The Alabama Supreme Court explained in Bleier that other damages may remain available when supported by the evidence, including losses occurring before the employee became unable or unwilling to work, lost benefits and mental anguish. Punitive damages may also be recoverable in an appropriate retaliatory discharge case.

So, we again have to separate two questions:

Was the termination unlawful?

and

What damages did the unlawful termination cause?

Those are not necessarily the same inquiry.

From Our Files: We Faced This Issue in the Stewart Case

This issue is not merely academic for our firm.  A few years ago, Powell & Denny represented a client in his workers’ compensation and subsequent retaliatory discharge litigation against his employer.  Our client was a longtime truck driver who suffered a serious work-related shoulder injury. His physical limitations eventually prevented him from returning to the occupation in which he had spent much of his working life.

In the workers’ compensation case, the Circuit Court of Jefferson County ultimately found Stewart 100% permanently and totally disabled.  But there is an important fact about that judgment that illustrates why the words “permanent total disability” can be misunderstood.

Our client attempted to return to work after reaching maximum medical improvement, but was unable to perform all his job duties given his injury.  The trial court specifically found that Stewart had a failed work attempt with a towing company and that the job paid substantially less than his pre-injury wages.

In the Final Order, the Judge found that our client was limited to only light duty work, which would prohibit him from returning to his job as a truck driver.  The Court further determined that any jobs available to our client-given the light duty work restrictions—such as security guard or gatekeeper work—traditionally paid approximately $8.50 to $10.50 per hour. Our client was paid approximately $23 per hour at the time of his job injury.

The Court specifically found that a $12-per-hour job did not provide remuneration similar to our client’s former $23-per-hour employment and that the defense vocational expert had not identified non-trucking jobs within Stewart’s restrictions that provided similar remuneration ; so, ultimately, after considering our client’s restrictions, pain, education, training, work experience and other vocational factors, the Court found him unable to return to his previous work or other reasonably gainful employment and found him 100% disabled. Re

Yet that did not prevent Stewart from pursuing his separate retaliatory discharge claim.

Recommended Reading: What Does “reasonably gainful employment” Mean in an Alabama Workers’ Compensation Claim?

Powell & Denny subsequently obtained a $750,000 retaliatory discharge verdict against the defendant.

This history case why it can be dangerous to assume that an injured employee’s disability automatically eliminates a retaliatory discharge claim.

Recommended Reading: $750,000 Wrongful Termination Verdict in Bessemer, Alabama

Permanent Total Disability Does Not Necessarily Mean a Person Can Never Work Again

This deserves considerably more discussion than we can give it here, so we will address that issue separately in the next article in this series:

Recommended Reading: Can You Be Permanently and Totally Disabled and Still Win an Alabama Retaliatory Discharge Case?

What Should an Injured Worker Remember?

An Alabama employee should not assume that there can be no retaliatory discharge claim simply because he or she:

• was still off work when terminated;
• had not been released to full duty;
• was working under permanent restrictions;
• could not return to the pre-injury job; or
• was later found to have a substantial vocational disability.

At the same time, Bleier does not guarantee a retaliatory discharge claim merely because an injured employee was terminated while disabled.

The central question remains why the employer terminated the employee.

And even when retaliation can be proven, the employee’s ability to work may substantially affect the damages that can be recovered.  That is why the medical evidence, work restrictions, employment records, communications with the employer, timing of the termination and employer’s stated reasons should be considered together rather than in isolation.

Questions About Being Fired After an Alabama Workers’ Compensation Injury?

If you have suffered a job injury, were subsequently fired and you have questions about your rights and benefits under Alabama’s workers compensation laws -don’t hesitate to contact and speak with one of the experienced Alabama Workers Compensation and Social Security Disability attorneys at Powell and Denny today for a free consultation. Appointments are available in person, or virtually via Zoom if more convenient.  Powell and Denny would appreciate the opportunity to help.  And remember, there is no fee unless you win.

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