In some situations, you can be legally fired after a workplace injury. Explore state and federal laws that can help you protect your rights.
Most employees want to get back to work as soon as possible after an injury. No one expects to be hurt at work then fired during a difficult recovery.
There are circumstances that allow employers to legally fire workers who are temporarily or permanently disabled. Sometimes the worker can continue to receive workers’ compensation benefits, and possibly unemployment.
There are also scenarios that leave the fired employee with no financial help at all. For example, if the doctor releases a worker to return to work with restrictions, but the worker refuses a light-duty assignment, they can be fired and lose their workers’ comp disability benefits.
State and federal laws protect injured workers from unjust and illegal firings. Here’s what you need to know about wrongful termination and at-will employment, breach of contract, employer retaliation, and worker disability.
Learn more about what to do after a work injury here.
When You Can Legally Be Fired After a Work Injury
Employers can legally fire injured workers for several reasons in an at-will state.
Legitimate reasons to fire an injured worker:
- Light duty work that accommodates an employee’s work restrictions is not available.
- Refitting a workspace to accommodate a disability would be a financial hardship.
- The worker no longer has the physical ability required to perform the job.
- The employer doesn’t like the worker’s job performance.
- The employee refused to return to work after medical clearance.
- A small business owner can’t afford to wait for an employee to return to work.
Sometimes, it’s simply impossible for an employer to accommodate a disabled employee. Without evidence of discriminatory practices or other violations of the law, an at-will employee’s rights are limited.
Example: Small Restaurant Owner Can’t Rehire Worker
Mr. J owns a small, successful restaurant. He needs a minimum staff of two cooks and five waiters. He hopes to add staff in the future, but the business can’t support any new employees yet.
Sally worked for Mr. J as one of his cooks. On an especially busy night, Sally slipped and fell, fracturing her leg in several places.
Mr. J helped Sally with workers’ compensation to be sure her medical needs and partial lost wages were paid during her recovery.
As much as Mr. J wanted to wait for Sally to return to work, his restaurant couldn’t operate with just one cook. He had to hire a new one.
Two months later Sally’s leg was fully healed, and she was ready to get back to work. Mr. J told Sally he couldn’t afford an additional salary and regretfully told Sally her employment was terminated.
Employment and Workers’ Compensation Law
Every state requires most employers to provide workers’ comp insurance to protect eligible workers. Worker’s compensation laws also shield employers from being sued by injured employees.
At the same time, almost every state’s employment law recognizes the doctrine of “at-will” employment. This means both the employer and employee are free to terminate their working relationship at any time, for just about any reason.
An at-will employee can be fired without cause, with three major exceptions:
- Violations of public policy: retaliation and discrimination
- Breach of implied or written contract
- Breach of the employer’s covenant of good faith: broken promises of fair treatment
Visit the National Conference of State Legislators website to see your state’s wrongful termination policies.
You Can’t Be Fired for Filing a Worker’s Comp Claim
Your employer cannot legally fire an injured worker for filing a workers’ compensation claim or reporting a workplace injury.
If you’ve been unfairly fired, denied benefits, or harassed because of an on-the-job injury, contact an experienced workers’ compensation attorney for legal advice.
Public policy consists of the rules and laws that hold our society together. It means doing the right thing, for the good of the community.
Employers who fire workers in violation of public policy are typically guilty of retaliation against employees who are:
- Exercising a legal right, like to vote
- Filing a claim for compensation
- Refusing to engage in illegal activity
- Reporting the employer for illegal activity
Written Contracts Protect Workers
Some workers accept jobs under a written contract with the employer that spells out the work agreement, including when and how the worker or employer can terminate the contract.
If you’re fired or laid off in a way that breaches your contract, you have grounds for legal action against the employer.
Most large companies have employee manuals with regulations and procedures for workers returning after an on-the-job injury. The companies often support returning workers by keeping their jobs open, providing alternate positions, or accommodating a newly disabled employee.
These return-to-work policies are often considered binding for the employer. Workers who are fired after following policy guidelines may have legal recourse.
Breach of Implied Contract of Employment
One exception to the at-will doctrine is an implied contract of employment. Even in at-will employment, workers may have an implied legal right not to be fired after returning from an on-the-job injury.
An implied contract of employment is not a written agreement between you and the company but is an understanding that comes from employment manuals, employee evaluations, or comments made by your boss in your interview, during job promotions, or in connection with your injury.
If an employer made statements to the effect that a worker’s job would be secure, the worker might have the basis of an employee contract, which overrides the at-will employer-employee relationship.
Example: Employer Fires Worker After Slip and Fall Injury
Avery worked as an IT analyst. Her quarterly job reviews were well above average, prompting the head of her department to tell Avery, “You’ll have a job with this company as long as you want.”
She continued to receive excellent work reviews, and her department head restated his promise by telling her, “You’ll have a job with the company as long as long as I’m your boss.”
About a month later, Avery slipped and fell on the steps in her office building, breaking her right arm. Her injury required six weeks of treatment and therapy.
When she recovered, her department head told her that her employment was terminated. In her absence, the company hired another IT analyst.
Avery reminded the department head that he’d assured her she would have her job as long as she wanted. She said her on-the-job injury and forced absence did not give him a valid reason for firing her.
Avery retained an attorney and filed a breach of implied contract lawsuit against her former employer.
Her attorney subpoenaed her employment records and used her history of above-average work reviews as evidence. Avery testified that her department head stated, “you will have a job with this company as long as you want.”
The court found in Avery’s favor. The judge determined that although Avery was hired as an at-will employee, her status changed to a contracted employee when her department head told her she’d have a job as long as she wanted.
The judge ruled that Avery’s on-the-job injury and temporary absence did not constitute just cause for termination of her employment. The judge awarded Avery damages representing her past and future lost wages and an additional amount for the mental anguish she suffered.
Federal Laws Protecting Disabled Workers
The Americans with Disabilities Act (ADA) makes it unlawful for an employer to discriminate against a current or prospective employee who is disabled.
The ADA makes it illegal for an employer to terminate a worker based solely on the employee’s disability. It also prevents employers from firing employees whose disability or medical treatment prevents them from immediately returning to work.
While employers are bound by ADA and Equal Employment Opportunity Commission(EEOC) rules and regulations, situations exist where firing a disabled worker is the only option available to an employer.
It may be legal for an employer to fire a disabled employee if physical limitations prevent the worker from fulfilling the job duties, and the worker can’t be moved into a position in which the disability isn’t “duty prohibitive.”
An employer who has no choice but to layoff a disabled employee is not in violation of federal disability laws.
Not all companies are large enough to have a range of flexible positions available for injured employees. When an employee’s disability makes it impossible to do the previous job or any available job within the company, the employee may have to seek employment elsewhere.
Employers must, however, make reasonable accommodations for a worker’s disability. These can include access ramps, bathroom assist bars, raised desks, lower shelving, etc.
One exception is when the expense of refitting a work area to accommodate a disabled employee costs too much for the employer. This usually occurs with smaller companies that aren’t financially capable of paying a lot for alterations.
Example: Paralyzed After Falling at a Jobsite
When Luke started working as an electrician for a mid-sized electrical company, he was a healthy twenty-four-year-old with no disabilities. One day, while working on the third floor of a new model home, Luke stepped between two flooring joists and fell to the second floor, breaking his spine.
The injury left Luke paralyzed from the waist down and dependent on a wheelchair to get around.
After a long period of recuperation, Luke contacted his foreman and told him he wanted to return to work. The foreman was sympathetic and told Luke he would look into it.
After the company made a thorough analysis of the costs (such as building a wheelchair ramp for every new job site, providing a handicapped bathroom facility, and purchasing a handicapped-equipped van to help Luke get to and from job sites), Luke was told he couldn’t return to work.
Although Luke’s disability was a direct result of an on-the-job injury, it was financially unreasonable for Luke’s employer to accommodate his new job requirements.
Luke’s employer most likely did not violate the ADA’s or EEOC’s regulations. The workers’ compensation insurance company would be wholly responsible for providing Luke’s medical benefits and wage replacement compensation.
Options for Employees Injured Outside of Work
If you are injured on the job or injured during work-related off-the-clock activities, you’ll be eligible for workers’ compensation.
What happens if you can’t work because of a non-work-related injury?
If you have accumulated sick leave with your employer, you can take some time off with pay. But then what?
If you work for a company with more than 50 employees, and you’ve worked for that employer at least 12 months, you may be eligible for job protection under the Family and Medical Leave Act (FMLA).
Under FMLA, you can take up to 12 workweeks of unpaid job-protected leave for a serious medical condition that keeps you from performing your job. FMLA also requires your employer to keep your health insurance in force.
If you’ve become disabled by your injury or illness, you have the same protections under ADA and EEOC rules as any other disabled worker.
If your injuries were caused by the negligence of someone else, like in a car wreck or slip-and-fall, contact a personal injury lawyer for a free consultation to find out how you can recover compensation for your lost wages, future earnings, and the pain and suffering you’ve endured.
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