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There are many examples of employers being penalized for the actions they take in response to employee injuries. Employers must be mindful and act appropriately to both avoid them in the first instance, and/or be prepared to respond to them when claims are made.


As of January 2011, FedEx had a company policy that required immediate reporting of workplace injuries whether they required only minor first aid or professional medical treatment. In addition, the FedEx policy required that employees wishing to seek professional medical treatment for a workplace injury first attempt to provide advanced notice to management.  Under this company policy, they are to notify management before seeking professional medical care or the company could subject the employee to termination.

On January 6, 2011, a FedEx package handler reported to supervisors that he was suffering from a sore back.  FedEx generated a first aid/injury report and placed the employee on light duty to accommodate his condition.  He did not request or seek medical treatment at that time. After working light duty over five days, the employee sought medical treatment for his back.  The physician assistant provided a “certificate to return to work” which cleared the employee to return to work but he had to remain on light duty until a functional capacity evaluation could be performed.  The employee began his next shift and worked light duty.  At the end of the shift, the employee presented the note from the physician assistant thereby notifying FedEx that he had already sought and received medical care for the January 6th incident.  Citing the company policy that required advanced notice before seeking medical treatment for a prior workplace injury, FedEx terminated the employee’s employment.

The employee brought a retaliatory discharge action in the Circuit Court of Cook County, Illinois which was removed to the United States District Court for the Northern District of Illinois, Eastern Division.  District Judge John J. Tharp was assigned the case.  Plaintiff moved for judgment on the pleadings while FedEx moved for summary judgment.

Discussion of Case

Judge Tharp began his discussion of the motions by noting that under Illinois law it is unlawful for an employer to terminate an employee in retaliation for exercising a right guaranteed by the Illinois Workers’ Compensation Act, 820 ILCS 305/4(h).  This is an exception to the general rule in Illinois that employers may terminate at-will employees for any or no reason. In the motions, the parties agreed that a causal relationship existed between the employee’s actions and his termination. They disagreed about whether the employee’s actions were protected under the Illinois Workers’ Compensation Act.  FedEx argued that the sole cause of the employee’s termination was not the fact that he sought medical treatment but rather his failure to notify the company before he did so. The employee agreed with FedEx’s portrayal of his termination.  Thus, the issue was whether the Illinois Workers’ Compensation Act grants employees the right to seek medical care for a prior workplace injury without first notifying a supervisor.

FedEx contended that its advanced notification policy did not interfere with the right to seek medical treatment because the policy expressly advises employees that they may seek medical care from their own choice of provider, and does not deny access to medical care or employer compensation for medical care, because there is nothing that conditions that choice on supervisor approval.  FedEx suggested other justifications for imposing its advanced notice policy including the claim that management needed to be aware of physical limitations of employees while planning staffing and scheduling of shifts.  FedEx also argued the advanced notice policy was needed to ensure that it did not allow employees to perform duties inconsistent with restrictions imposed by medical professionals.

The Decision

Judge Tharp rejected all of FedEx’s justifications for its advanced notice policy.  The court concluded that FedEx’s requirement that employees notify the company prior to seeking medical treatment for a workplace injury interfered with the right of the employee to seek medical treatment for those injuries. Because the employee exercised his right to seek medical attention without employer interference, a right guaranteed by the Illinois Workers’ Compensation Act, and because it was undisputed that FedEx terminated the employee because of his exercise of that right, the court concluded that the employee’s claim to retaliatory discharge had been established as a matter of law and granted the Plaintiff’s motion for judgment on the pleadings and denied FedEx’s motion for summary judgment.

Judge Tharp’s Memorandum Opinion does not have precedential effect on other District Court judges sitting in the Northern District of Illinois nor does it have precedential effect on Circuit Court judges in the State of Illinois. However, it does have persuasive value in those courts.  Employers must be mindful of this decision and review their policies to determine whether they run afoul of Judge Tharp’s Memorandum Opinion.  In doing so, employer’s will be in a position to make an assessment as to whether their policy needs to be modified to any extent.

This decision is another example of employer’s being penalized for the actions they take in response to employee injuries.  The Department of Labor has also found employers in violation of various Whistleblower Acts by terminating employees who reported injuries.  Employers must be mindful of these decisions and act appropriately to both avoid them in the first instance, and/or be prepared to respond to them when claims are made.

FedEx has filed a motion directed to the court’s Memorandum Opinion which has been taken under advisement, allowing the parties time to conduct settlement negotiations.   Thus, it is uncertain whether FedEx will appeal the decision.


For more information, please contact Joseph Spitzzeri, Co-Chair of Johnson & Bell's Employment group.