Update 10/19/2022
Our employment Lawyers have received numerous calls from employees. These emploees have been terminated for reporting a workplace injury. The employer states the employee violated company policy by not “immediately reporting” the injury. We believe that such practices may run afoul of anti-retaliation law under Florida Workers’ Compensation Law.
Florida Law Protects Employees
Florida’s Workers’ Compensation Act creates a self-executing, non-adversarial system. The system is designed to function without the intervention of legal representatives in the vast majority of cases. It places on the employer the burden to assure the quick and efficient delivery of disability and medical benefits. The system commences with an employee reporting to an employer an injury arising out of his or her employment.
Filing a Claim
Florida law provides that a workers’ compensation claim begins when an employee advises the employer of the injury within 30 days. Once such a claim is received, the Employer must report the injury to its insurer/claim administrator within seven (7) days. The Employer is to use Form DFS-F2-DWC-1 to report the claim. The employer must provide a copy of the form to the employee or the employee’s estate.
The Form DFS-F2-DWC-1 must be legibly date stamped in the “Received by Claims-Handling Entity” box onced received. The claim administrator must also confirm that the information it has been provided on Form DFS-F2-DWC-1 is correct. The claim administrator must then complete the Claims-Handling Entity Information section of Form DFS-F2-DWC-1.
Once the claim administrator receives the claim, it obtains a fraud statement from the injured employee making the claim. It also typically provides information in reference to resolving worker’s compensation issues by way of the EAO. This is often contained in the brochure published by the Division of Worker’s Compensation that claim administrators often provide.
Florida Law Protects Employees from Retaliation
Florida’s Law Applied to Employer’s Policy
To protect employees, the Florida Legislature created section 440.205, Florida Statues. It provides that an employee shall not be discharged for filing or threatening to file a workers’ compensation claim. Its intent is to insure that employees do not have to fear reprisal from their employers when they file a claim.
Yet, employers justify firing employees for failing to “immediately report” the injury. Employers claim this is in violaiton of company policy. Such a justification should be met with extreme skepticism.
Illleal to Terminate Employee for Failing to File Claim Immediately
First, there can be no violation of the company policy without the employee reporting the workplace injury. Florida Workers’ Compensation law mandates that an employee “shall” report the injury to his or her employer. Thus the employee is being terminated for doing what must be done to obtain workers’ compensation benefits. Stated another way, the employees’ reporting of the workplace injury is the “but for” cause of the ultimate termination. Simply stated- no reporting of workplace injury as required by Florida Law; no violation of the company policy.
Employer Policy Requiring Immediate Reporting Hinders Workforce
Second, workplace rules that require immediate reporting of workplace injuries hinder Florida’s workforce. If an employee does not feel free to report injuries or illnesses, an employer’s entire workforce is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries. Injured employees may not receive the proper medical attention or the workers’ compensation benefits to which they are entitled. This is contrary to section 440.205, Florida Statues which is intended to make sure that employees do not have fear of reprisal for invoking the workers’ compensation system. Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health.
Employer Policy Requiring Immediate Reporting is about Money
Finally, the motive behind such workplace rules is not the safety of employees or consumers, but rather lining their pockets. There are many reports from leading insurance journals that conclude that delays in reporting workplace injuries increases the costs of the claim. For example, one study provided that a two week delay in reporting a workplace injury increased the workers’ compensation claim by eighteen percent (18%). A three to four week delay in reporting a workplace injury increased these workers’ compensation claim by thirty percent (30%). Delays greater than four weeks in reporting the workplace injury increased the employee’s workers’ compensation claim by forty five percent (45%). Simply stated, the longer the reporting delay the more that will be paid.
Conclusion
Employees in Florida should report workplace injuries free from fear of retaliation. The law of Florida provides the necessary protection. Employer policies that deter such reporting should be found unconscionable as a matter of law.
If you have been a victim of retaliation for reporting a workplace injury, please contact the employment lawyers at LaBar & Adams, P.A. in Orlando at 407-835-8968 or fill out the online form located on our website.
