By Paula Quillin.
Section 41 of the Oklahoma Workers’ Compensation Statute, 85 OKLA. STAT. § 341, prohibits an employer from retaliating against an employee who files a workers’ compensation claim. The statute provides:
A. No employer may discharge or, except for non-payment of premium, terminate any group health insurance of any employee because the employee has in good faith:
1. Filed a claim;
2. Retained a lawyer for representation regarding a claim;
3. Instituted or caused to be instituted any proceeding under the provisions of this act;
4. Testified or is about to testify in any proceeding under the provisions of this act; or
5. Elected to participate or not to participate in a certified workplace medical plan as provided in this act.
B. No employer may discharge any employee during a period of total disability solely on the basis of absence from work.
C. After an employee’s period of total temporary disability has ended no employer shall be required to rehire or retain any employee who is determined to be physically unable to perform assigned duties. The failure of an employee to rehire or retain any such employee shall in no manner be deemed a violation of this section.
D. No employer may discharge an employee for the purpose of avoid payment of temporary total disability benefits to the injured employee.
E. An employer which violates any provision of this section shall be liable in a district court action for reasonable damages, actual and punitive if applicable, suffered by an employee as a result of the violation. An employee discharged in violation of the Workers’ Compensation Code shall be entitled to be reinstated to his or her former position. Exemplary or punitive damage awards made pursuant to this section shall not exceed One Hundred Thousand Dollars ($100,000.00). The employee shall have the burden of proof by a preponderance of the evidence.
An employer may offer light duty work that the employee is capable of performing rather than pay temporary total disability (TTD) benefits. An employer may change the at-will worker’s hours when offering light duty work without fear of violating 85 OKLA. STAT. § 5 (now codified at § 341). Wal-Mart Stores, Inc. v. Berg, 2004 OK CIV APP 79, ¶ 15, 99 P.3d 1205, 1209.
The Tenth Circuit Court of Appeals stated in Cooper v. Central & Southwest Services that the “Oklahoma Supreme Court would hold that an employer may discharge an employee who is unable to perform his assigned duties under § 5.C (now codified at § 341(C)), but only if that employee is not protected (receiving TTD compensation) by § 5.B (now codified at 341(B)).” 271 F.3d 1247, 1255 (10th Cir. 2001).
In Glasco v. State ex rel. Oklahoma Dept. of Corrections, a state employee was injured on the job and was placed on leave without pay receiving temporary total disability benefits. 2008 OK 65, ¶ 2, 188 P.3d 177, 180. After more than a year of being on leave without pay the Department discharged Glasco pursuant to 74 OKLA. STAT. § 840-2.21. Id. ¶ 4, 188 P.3d at 181. The employee subsequently brought suit against the employer alleging retaliatory discrimination under 85 OKLA. STAT. §§ 5-7 (now codified at § 341). Id. ¶ 5, 188 P.3d at 181. The Oklahoma Supreme Court removed any conflict between § 840-2.21(D) and § 5(B), and harmonized the statutes by giving force and effect to the proviso added by the 2002 amendment to § 840-2.21(D): “Notwithstanding the provisions of Section 1 et seq. of Title 85 of the Oklahoma Statutes.” Id. ¶ 17, 188 P.3d at 184. Thus, “§ 840-2.21(D) shall govern instead of § 5(B) when a state employee has been on leave without pay for a year.” Id.