Can I Be Fired While Out On Workers' Compensation?

Your employer cannot fire you merely because of your workers’ compensation claim. However, your employer can fire you while you have an open workers’ compensation claim.

By , Attorney · UC Law San Francisco

One reason many people avoid filing claims for workers' compensation is the fear they will lose their jobs. Often, instead of filing under workers' compensation, employees will use their health insurance for doctor visits and, if they need time off work, use any sick days or short-term disability time they have.

However, most doctors' offices now screen for injuries that happened at work, and if they determine you have a work-related injury, they'll either bill your employer's workers' comp insurance provider or refuse service to you, if they don't take workers' comp claims.

This leaves you with few options but to file a workers' comp claim. But you may worry: can your employer fire you for filing a workers' comp claim? The short answer is no, your employer cannot fire you merely because of your workers' compensation claim.

However, your employer can fire you while you have an open workers' compensation claim. But your employer must be able to show there were reasons for firing you or laying you off that didn't have to do with your filing a workers' compensation claim.

Job Protection and Workers' Comp: What Type of Employee Are You?

Most employees have "at will" employment, meaning that their employers can terminate them for any reason (that isn't illegal) or no reason whatsoever.

Similarly, employees can resign from their jobs for any reason or no reason. If you do not know exactly what your employment situation is, you are most likely an "at will" employee.

At Will Employees

If you are an at will employee, your employer can terminate you based upon previous poor work performance, the need for layoffs due to financial problems, a restructuring of the company, or any other legal reason. But if you have filed a workers' comp claim, this may have given your employer a motive to let you go.

Most employers will not come right out and tell an employee on workers' compensation that their workers' compensation claim is the reason they are being terminated. As described below, an employer cannot terminate your employment as retaliation for filing a workers' compensation claim. Employers know that you could then file a lawsuit for discrimination or retaliatory termination.

Contracted Employees

If you are a contract employee, your rights are different. Your employer still may not terminate you as retaliation for a workers' compensation claim. Additionally, your contract should list the specific reasons your employer may terminate your contract.

A frequent clause in employment contracts is a provision that allows an employer to terminate employment if an employee is unable to work for a given period of time, such as six months. Employers often will terminate employees on long-term workers' compensation claims using such a provision. Termination for this reason is usually legal.

Termination as Retaliation for Workers' Compensation

It is illegal retaliation for your employer to terminate your employment for reporting a workplace injury or filing a workers' compensation claim. It is rare for an employer to make the mistake of telling an employee that they are being fired due to a workers' compensation claim, because most employers are aware that this would likely lead to an employment discrimination lawsuit. Instead, employers might use any of the following as pretexts for firing:

  • performance issues
  • bad attitude or personality clash
  • excessive tardiness or absences, or
  • restructuring.

Sometimes these reasons might be genuine, but in many cases they're not. If you haven't ever received a negative performance review, you get along with your coworkers and supervisors, and you have a spotless attendance record, your firing might be the result of illegal retaliation.

If your employer terminates your employment and you suspect it is due to your workers' compensation claim, you should try to gather evidence to prove your suspicion.

Medical Improvement

Your employer is required to keep you on during your workers' compensation claim until you fully recover from your injury or reach maximum medical improvement. Maximum medical improvement (MMI) is a term used in most states to describe the point at which your condition related to your workplace injury is not likely to improve with further treatment.

Fired for Permanent Work Restrictions

If you have fully recovered from your workplace injury or occupational disease, or have reached maximum medical improvement, you should discuss with your doctor whether you have any permanent work restrictions. If you have fully recovered, it is highly unlikely that you have any permanent work restrictions due to your work-related injury.

To the extent you have any permanent work restrictions, you must discuss these restrictions with your employer. Your employer is required to make reasonable efforts to accommodate your new work restrictions so that you can perform your job.

For instance, perhaps you need an ergonomic work station to accommodate your doctors' restrictions pertaining to duration of sitting or standing, or maybe you need to take more short breaks during the day.

If your employer can reasonably accommodate you, your employer must do so. This is a requirement pursuant to the Americans with Disabilities Act.

If You Can't Return to Your Job

If your employer cannot accommodate your work restrictions after you have reached MMI, your employer is allowed to terminate your employment. This is typically the case where the nature of the job is such that someone with your restrictions simply cannot perform the job. For example, if you are a logger and you are not allowed to lift more than ten pounds, you likely cannot return to your job. Your employer could then terminate your employment.

Your employer has the option of offering you alternative, light duty work. Most often, this occurs when an employer offers you a different position in the company with less vigorous physical requirements.

In many cases, if you cannot return to your job, you are eligible for additional workers' compensation benefits. This could include vocational retraining or potentially a pension through permanent and total disability benefits.

Gather Your Evidence

If your employer terminates you while you have an open workers' compensation claim, or you think your employer might fire you in the near future, it's important to keep documentation of all evidence related to your injury and your employment. Print emails and save documents that might support your lawsuit for employment discrimination.

If you are fired while you are receiving treatment, you should be suspicious that your employer is terminating you because of your workers' compensation claim. Of course, your employer may not be firing you in retaliation for filing a claim. If your employer is conducting mass layoffs, for example, your firing might be unrelated to your workers' comp claim.

Contact an Employment Attorney

If you believe you've been the victim of illegal retaliation or discrimination, you should strongly consider talking to an employment attorney as soon as you can.

There are statutory limitations for the time you can file a lawsuit, and you do not want to lose your right to file simply because you waited too long to talk to an attorney.

Most attorneys offer free consultations during which you can discuss the specifics of your case.

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