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. If that happens, though, you should contact a workers compensation lawyer for advice on how to proceed.
What is 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’ compensation claim.
How prevalent 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 worker’s 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 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 workers’ 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.
Termination While on Worker’s Compensation Leave
A common question employees who have been injured on the job have for their workers’ compensation lawyer is whether they can be fired while out on workers’ compensation leave. The answer is not as simple as yes or no. While you cannot be terminated simply because of a worker’s compensation claim, it is possible to be terminated while you have an open worker’s compensation claim. An experienced workers’ compensation attorney can help you in handling a termination while on worker’s compensation leave.
What is an employer required to do?
Under the workers’ compensation laws, an employer is required to maintain an employee’s job, while a workers’ compensation claim is pending, until the employee has fully recovered, or reached “maximum medical improvement.” Maximum medical improvement, or MMI, describes the point at which your work-related medical condition is not likely to improve with further treatment.
Should I even file a workers’ 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.
If you have questions regarding retaliation, or any other Workers’ Compensation concerns 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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