Workers Compensation

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

You have legal protections against retaliation for filing a workers’ comp claim, but that doesn’t necessarily mean your job is protected while you’re out on temporary disability leave.
By Sachi Barreiro, Attorney, University of San Francisco School of Law | Updated by E.A. Gjelten, Author and Editor
Updated: Oct 17th, 2019

If you were injured on the job or developed a work-related chronic condition, you may be worried about suffering negative consequences if you file a workers’ compensation claim. After all, employers usually aren’t thrilled to learn about new claims, which may raise their insurance rates. The good news is that it’s illegal to discriminate against employees because they were injured at work or filed a workers’ comp claim. The not-so-good news is that, depending on where you live, you might not get your old job back after you’ve taken a leave to recover from your injuries.

Protection From Retaliation for a Workers’ Comp Claim

Most employees in the U.S. work at will. If you’re an at-will employee, your employer can fire you at any time, for any reason—unless the reason is illegal. (Contract employees, like most public school teachers, may have more protections under their contracts.) It’s illegal for almost all employers to discriminate or retaliate against employees—by firing, demoting, reassigning, or otherwise punishing them—because they filed a workers’ comp claim. Without this protection, employees would be too afraid to exercise their rights, and employers would have no incentive to maintain a safe working environment.

When Workers’ Comp Doesn’t Protect Your Job

Even though you’re protected from retaliation, filing a workers’ comp claim doesn’t mean your employer can’t let you go for another legitimate reason. For instance, it probably wouldn’t be considered illegal retaliation if you lost your job after you were injured as part of departmental or company-wide layoffs, or if you had a documented history of poor performance or discipline problems.

Also, workers’ comp laws in most states don’t necessarily guarantee that you’ll get your old job back after you’ve been out on leave and recovering from your injury (known as temporary disability). In many states, workers’ comp laws don’t require your employer to keep your position open or offer you a different one that accommodates limitations your doctor has prescribed, such as not standing for long periods.

A few other states give injured employees some right to reinstatement. In Wisconsin, for instance, your employer may not refuse to give you back your previous job or another suitable one unless it has a fair business reason. Oregon has particularly strong job protections for injured workers. With some exceptions, if you work for a relatively large employer in that state, you’re entitled to return to your previous job within three years after your injury, as long as you’re able to do the work.

How Can I Tell If I Was Fired Because of My Workers’ Comp Claim?

It may be difficult to tell—and prove—whether your employer actually discriminated against you because of your workers’ comp claim. However, there are a few signs you can look out for. The first is timing. Were you fired within a few days or weeks of filing your claim? It’s more likely that your termination was retaliation when it happened soon after you reported your injury or filed the claim.

Also, if your supervisor or other managers have said negative things about your claim, or have pressured you to give up your workers’ comp rights, that could be evidence that your firing was illegal discrimination.

Finally, you should also consider the reason your employer gave for firing you or letting you go. Were you given a clear reason that relates to your performance, the company’s financial health, or some other legitimate factor? If you’re a top performer with no history of discipline, and the company is doing fine, your workers’ comp claim may be the real reason for your termination.

What Can I Do If I Was Fired Because of My Workers’ Comp Claim?

You should be eligible to receive additional compensation if you can demonstrate that your employer fired or took other negative actions against you in retaliation for filing a workers’ comp claim. In many states, you’ll need to file your retaliation claim as part of your workers’ comp case. You may typically ask to be reinstated to your job and receive payment for lost wages. In some states, you might also collect a penalty. In California, for example, your employer must pay you an additional 50% of your workers’ comp benefits (up to $10,000) if it fired or discriminated against you in another way because of your workers’ comp claim.

In other states, you may be able to file a separate lawsuit against your employer. In Pennsylvania, for instance, courts have recognized the right of injured employees to file wrongful termination lawsuits for damages including lost wages and benefits, the cost of looking for a new job, and the emotional distress caused by the illegal firing.

Am I Protected Under Other Laws?

If you lost your job after suffering a work injury, you may have rights under other federal and state laws, even if your termination didn’t qualify as illegal retaliation under workers’ comp laws. For example, the federal Americans With Disabilities Act (ADA) and some state laws require employers to provide reasonable accommodations to employees with serious health conditions or disabilities. And the federal Family and Medical Leave Act requires larger employers to give you job-protected leave if you have a serious health condition

If you believe you were fired illegally, or your employer has refused to allow you to come back to work after you’ve been out on temporary disability, consult with an experienced workers’ compensation or employment lawyer who can help you protect your rights and explain how the law applies to your situation.

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