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Last Updated on July 6, 2023 by Carlos Lopez
No one relishes the idea of losing their job, but the fear of being terminated is one of the things that keeps many injured workers from pursuing a workers’ compensation case.
While your employer can fire or lay you off while you’re out on workers’ comp, they cannot fire you for being injured.
In other words, if you are fired or laid off from your job, your employer must be able to prove that your termination was due to some other reason, such as poor job performance or company downsizing.
These reasons cannot have anything to do with your filing a workers’ comp case.
At Will vs. Contracted Employees
Your status as an employee may have something to do with whether or not you are more at-risk for termination while out on workers’ compensation.
If you are an at will employee, your employer can terminate you based on prior poor work performance, layoffs due to financial problems, company restructuring, or other reasons provided for in the law.
While your employer cannot directly terminate your employment as retaliation for filing a claim, they may take your claim as a motivation to pursue your termination for a legal reason.
For contracted employees, however, their rights are different.
Your employer still cannot terminate you in retaliation for your workers’ comp claim, but many contracts include clauses that state your employer can terminate you if you are unable to work for a certain period of time.
This clause is one frequently used by employers to legally terminate contract employees who have filed workers’ comp claims.
Your Injury Status Impacts Your Ability to Claim Retaliatory Termination
Although you cannot be terminated as a direct consequence of filing a workers’ compensation claim, your job isn’t totally safe simply because you were injured at work.
The status of your injuries and your ability – and willingness – to return to work can impact whether or not you can be terminated for reasons related to your workers’ comp claim:
Your employer is required to keep you employed (barring termination for legal reasons such as downsizing or poor prior performance) until you fully recover from your injury or reach maximum medical improvement.
This determination is made by your doctor and medical team.
If, at this point, it is determined that you can return to your full duties without restrictions, or if you can return to work with restrictions, then you have the duty to return to work.
However, if you reach this point and choose not to return to work, your employer can terminate you without your being able to claim retaliation.
Permanent Work Restrictions
Your injury may require you to be put on permanent work restrictions or accommodations, such as no heavy lifting or requiring an ergonomic desk so you can sit properly.
The law requires that your employer make reasonable accommodations to your working conditions if your injury requires them.
If your employer refuses to make these accommodations, you may be able to make a claim against your employer under the Americans with Disabilities Act.
Unable to Return to Work
Some injuries, even when you’ve reached maximum medical improvement, cannot be reasonably accommodated by an employer.
This happens often in highly physical jobs where your duties require that you be able to perform specific physical tasks.
In these situations, your employer can terminate your employment without repercussion.
Your employer does also have the option to allow you to take on alternative, light duty work, such as office work.
However, this isn’t always an option for every employer.
Documentation Is Your Best Protection
If you worry that your employer may terminate you while you’re out on workers’ compensation, or your employer has terminated you, keeping proper documentation is key.
Print out emails, save text messages, and collect documents that support your suspicion that you may be terminated or that you were terminated in retaliation.
Things such as prior performance reviews and signed contracts also are good documents to collect.
While it may not turn out that you were terminated because of your workers’ comp claim, talking to an experienced attorney to guide you through the process can be helpful to your peace of mind.
Workers’ Compensation Attorney in Washington, D.C.
At Lopez Law Firm, we understand how scary and frustrating work-related injuries can be.