Can I Be Fired After Filing a Workers' Compensation Claim?

Suffering an on-the-job injury or illness is scary enough without also having to worry about whether you'll be fired for seeking workers' compensation. Luckily, the law is clear: It's illegal for your employer to retaliate against you in any way for filing a workers' compensation claim.

That doesn't mean your job security is guaranteed, however. Your employer could still fire you for a legitimate reason unrelated to your workers' comp claim.

Illegal Retaliation for Filing a Workers' Comp Claim

Under state and federal law, it's illegal for employers to retaliate against employees for applying for workers' comp benefits. Your employer can't fire, threaten to fire, discipline, demote, or otherwise discriminate against you for bringing a workers' comp claim. Nor can they retaliate against you for receiving workers' comp benefits or being out on workers' comp leave.

Illegal retaliation can also include things like docking your pay, cutting your hours, giving you less desirable assignments, or making your job more difficult because of your workers' comp claim.

In short, your employer can't punish you for exercising your legally protected right to seek workers' comp. If they do, you're entitled to additional compensation and may also be able to sue for wrongful termination.

Firing for a Legitimate Reason

However, just because you're pursuing a workers' comp claim doesn't mean your employer is prohibited from firing you during that time. Your employer is still legally permitted to fire you for a legitimate reason unrelated to your workers' comp claim. Examples of legitimate reasons could include poor work performance prior to your injury or illness, company restructuring, or a business downturn.

In addition, if you're out on temporary disability recovering from your workers' comp injury, your employer may legally hire someone else to fill your job position. There's no guarantee under most state laws that you'll get back your old job—or even a different one. But some state laws require your employer to reinstate you in your former job or give you preference for open job positions.

And if you've suffered a permanent disability or have a serious health condition, you may be entitled to protections under the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA) that allow you to return to your job.

How Can I Tell If I Was Fired in Retaliation for My Workers' Comp Claim?

It's not always clear whether your firing constitutes illegal retaliation or was for a legitimate business reason. Even if it seems obvious that you were retaliated against for bringing a workers' comp claim, your employer will almost certainly argue that they had another reason to fire you.

There are a few signs that your employer's stated reason for firing you may be a pretext for illegal retaliation:

• Timing: If you were fired soon after filing a workers' comp claim, it's more likely that your termination constitutes retaliation. In California, where workers are generally entitled to more protections than in other states, your employer is presumed to have retaliated against you if you're fired within 90 days of bringing a workers' comp claim.
• Negative statements by supervisors: Another indication that you may have been retaliated against is that your supervisor or managers have pressured you to give up your workers' comp claim, or made negative statements about your case.
• Other evidence contradicting your employer's cited reason: It's more likely that you were retaliated against if your employer's reason for firing you is unsupported by the facts. For example, employers often cite poor performance or an economic downturn as reasons for termination. Evidence that you were a strong performer or that your employer is financially sound tends to show that the real reason for your firing was retaliation.

When to Contact an Attorney

If you believe you were fired or otherwise retaliated against for bringing a workers' comp claim, contact an employment lawyer. Workers' comp cases are often lengthy and complex, particularly when a claim for illegal retaliation is involved.

An experienced attorney can explain how your state's laws apply to your situation, help you gather evidence of retaliation, and protect your rights.