Terminating an Employee for Misconduct While They Receive Florida Workers’ Comp

We were recently asked by a client about whether or not an employee on workers’ compensation can be terminated for misconduct. I said yes, but explained that to cut off workers’ compensation benefits the “misconduct” must meet a special definition.  An employee with a workplace injury is expected to follow company policy and cooperate with the reasonable requests of the claims adjustor from the workers’ compensation carrier. However, if an employee receiving temporary partial disability (TPD) benefits commits “misconduct”, Florida Statutes allow the employer to terminate the employee and stop paying TPD benefits. It is an affirmative defense, and the employer has the burden of proving termination by a preponderance of the evidence. This changes the normal Florida “at-will” employment principles.

What is misconduct? FL Statutes, section 440.02(18) states that “misconduct” includes but is not limited to, the following: (a) conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or (b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

Further, courts have said that violation of employer policy may constitute misconduct but repeated violations of explicit policies, after several warnings, are usually required.  A single isolated act of negligence does not constitute disqualifying misconduct.  In a recent case, an employee was running an industrial machine used for cutting metal (plasma machine) without using a mandatory safety device (fume extractor).  There were disputed facts about the verbal safety warnings given to the employee prior to being sent home for not using the fume extractor.  The employer had not given written warnings for the prior safety warnings.  Despite safety meetings and verbal warnings about the requirements to use the fume extractor, the employee did not commit “misconduct” because it was the first written warnings.

Lesson learned.  Multiple written warnings may be required. Although an employee’s conduct (for example, a single instance of failing to use the fume extractor while working on the CNC plasma machine) may amount to a good cause for termination of his employment, it did not meet the more stringent standard of “misconduct” used in the Florida workers’ compensation statute. Read JCC decision.  As a result, an injured employee who does not have a series of written warnings (safety, conduct or performance-related) would likely be entitled to continue to receive TPD benefits for the duration of their claim; unless the single incident was extreme and substantial.

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