A common question from clients who have been injured on the job is whether they can be fired while out on worker’s compensation leave. The answer is not necessarily cut and dry. Although you cannot be terminated solely because you submitted a worker’s compensation claim, it is possible to be terminated while you are out on leave. Our Rogers workers compensation attorney can help you determine whether your termination was retaliation for filing a workers comp claim.
The purpose of workers compensation
The primary purpose of Workers Compensation benefits is to compensate employees for injuries they suffer while at work or performing a job-related activity, without needing to prove who was at fault for the injury. In exchange for these benefits, the covered employees agree not to file a lawsuit against their employer relating to those injuries. As useful as these benefits can be, if making a Workers Compensation claim may lead to retaliation by your employer, the benefits may not seem worth the risk.
How do courts define workers comp retaliation?
The legal definition of retaliation in the employment context is basically taking an “adverse employment action” against an employee for “engaging in legally protected activity.” Filing a claim for a work-related injury, under the Worker’s Compensation Act, is considered a legally protected activity because employees are legally authorized to file such claims. Therefore, the employee is protected from any negative consequences from his or her employer, simply because he filed a Workers Comp claim.
Why do some employers retaliate?
Unfortunately, the response some employers have to workplace injuries is to blame the employee for the injury and challenge the claim. Some employers go so far as to punish employees for making a worker’s compensation claim. As a result, many employees are fearful of bringing worker’s compensation claims because of the potential negative consequences. This type of conduct by employers goes against the purpose and goals of the workers’ compensation system, which is to quickly provide relief to employees who are injured on the job.
Should I even file a worker’s compensation claim?
It is not uncommon for employees to avoid filing a worker’s compensation claim for fear that they will lose their jobs as a result. So, instead, employees use their health insurance, sick days or short-term disability benefits to handle their work-related injury or illness. However, many doctor’s offices routinely ask whether an injury occurred at work and if so, they will bill the employer’s workers’ compensation insurance provider. So, you may not have a choice but to file the claim.
When is it legal for my employer to fire me while I’m on leave?
If your employer can demonstrate that there were reasons for terminating you or laying you off, that had nothing to do with your workers’ compensation claim, then you may not have any recourse. In order to be able to bring a workers’ compensation retaliation claim, which means you were terminated merely because you filed a claim, you have to demonstrate that was the only reason you were fired. That can be very difficult to do.
Most employees are considered “at will” employees
The majority of employees nowadays are considered “at will” employees, which means they can be terminated for nearly any reason, or for no reason at all. There are exceptions for different types of discrimination. But, if an employer can show, for example, that an employee had poor work performance, or there was a business need for layoffs because of financial problems, then the employer may be able to disprove a retaliation claim.
Contracted Employees have different rights
Contract attorneys, meaning those whose employment is established and governed by a written contract, have different rights than an “at will” employee. The employment contract will list the specific reasons for which your employer may terminate you. However, your employer is still prohibited from terminating you in retaliation for filing a workers’ compensation claim.
What happens if I can’t return to work?
If your employer is unable to accommodate your work restrictions once you have reached Maximum Medical Improvement (MMI), your employer can terminate your employment. This is common in situations where the nature of the job is such that, an individual with certain restrictions simply cannot continue to perform the job. Your employer can offer you an alternative position, but it is not required. However, there may be additional workers’ compensation benefits available, or you may be eligible for vocational training, permanent or total disability benefits. Discuss your options with your employer and our Rogers workers compensation attorney, if necessary.
If you have questions regarding retaliation or any other workers compensation matters in Arkansas or Missouri, please contact the Cottrell Law Office for a free consultation. You can contact us either online or by calling us toll-free at (888) 433-4861.
He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
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