A common question from clients who have been injured on the job is whether they can be fired while taking workers compensation leave. The answer is not as simple as yes or no. While you cannot be terminated simply because of a workers compensation claim, it is possible to be terminated while you have an open worker’s compensation claim. An experienced workers compensation lawyer can help you determine whether your termination is the result of retaliation.
The purpose of workers compensation benefits
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.
What is Workers Compensation 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 compensation claim.
How widespread is workers compensation retaliation?
Some reports have indicated that retaliation by employers has become a serious problem. According to an article in the Wall Street Journal, the instances of workplace injuries has decreased by 30% over the last 10 years. This significant decrease has been attributed to various factors, including safer work conditions. Yet, some experts believe a major factor in the decrease of reported injuries is the increase in retaliation for making workers compensation claims. It is believed that employers are taking more aggressive steps to discourage employees from reporting their injuries. Indeed, some statistics show that, although workers compensation claims have dropped, the number of worker’s compensation retaliation claims has doubled.
OSHA’s opinions about the causes of workplace injuries
The U.S. Occupational Safety and Health Administration (OSHA) has reported that a substantial number of workplace injuries have gone unreported in recent years. OSHA’s investigations have found that most workplace injuries still arise out of unsafe working conditions, rather than employee negligence. For this reason, if an employee reports an injury, a subsequent investigation may lead to the company’s liability for fines and other violations.
Why some employers retaliate against employees for submitting claims?
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 workers compensation claim. As a result, many employees are fearful of bringing workers 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.
When you may need to hire a workers compensation lawyer
While it is certainly a good idea to consult a workers compensation lawyer when you are facing retaliation issues, that is not the only situation where professional advice would be wise. When there are any complex issues in your case, the wisest decision is to consult with a workers compensation lawyer. For instance, if your employer denies your claim or you do not receive your benefits, as you should, then an attorney should get involved. Nearly 80% of employees who are injured at work do not appeal the denial of their claim. Consulting a workers compensation lawyer provides you with the best chance of receiving a fair settlement for your injuries.
Remember, workers’ compensation is an exclusive remedy
Before this system was put into place, an employee’s only remedy was to file a lawsuit, which required proof of damages. Now, nearly all employees are automatically entitled to workers’ compensation benefits. Likewise, the employer is automatically protected from lawsuits based on the employee’s injury. Basically, worker’s compensation benefits are meant to be a substitute for filing a lawsuit against the employer. In other words, if you accept workers’ compensation benefits, you waive your right to file a lawsuit.
If you have questions regarding workers compensation retaliation, or any other workers compensation matters in Arkansas or Missouri, please contact the Cottrell Law Office for a consultation, either online or by calling us as (800) 364-8305.
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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