And can you be fired for filing a workers’ compensation claim?
California law clearly states under Labor Code 132A that an employer cannot discriminate against “workers who are injured in the course and scope of their employment.” In layman’s terms, this means you cannot be legally fired solely because you were injured on the job and filed a workers’ compensation claim.
Unfortunately it’s not quite that simple, because you can still be fired after your injury for injury-related reasons.
Here me out.
Why you CAN’T be fired
California is an “at-will” employment state. This means you’re free to walk away from your job at any time, and your employer is free to fire you at any time for just about any reason.
The exceptions to that include:
Breach of implied or written contract (i.e. breaking an oral and/or written agreement)
Violation of public policy (like requiring an employee to engage in illegal activity)
Breach of fair treatment (such as discrimination based on age, race, religion, sexual orientation)
And under the Americans with Disabilities Act (ADA), employers cannot legally fire workers solely because their injury left them with a permanent disability. This is why most companies have systems in place to support workers after an on-the-job injury which allow them to continue working in some capacity, depending on the severity of the injury. But not every company is equipped to provide alternate positions.
Why you CAN be fired
If a worker’s disability makes it impossible for them to do anything within the company, then it is legal for employers to let them go.
Even bound by the ADA and Equal Employment Opportunity Commission(EEOC), sometimes firing a disabled or injured worker is the employer’s only reasonable option. This tends to happen more with smaller companies who have limited resources. Essentially, employers can fire you because of consequences arising from your on-the-job injury, but not from the injury itself.
Legal reasons to fire an injured worker include:
The employer cannot wait for the injured worker to return to work or else the business will suffer
There is no other position available that would accommodate the worker’s injury-related disability
The business cannot function without someone fulfilling a certain job, and the worker is no longer able to perform that job well
Adding infrastructures to accommodate a worker’s disability is an unreasonable financial hardship and will seriously harm the business
Smaller companies might not have the same range of positions or flexibility of a larger company. And creating a modified work schedule, restructuring certain roles, or acquiring new equipment and infrastructure to accommodate an injured worker just isn’t feasible. That being said, if an employer simply doesn’t want to accommodate an injured employee, or in any way pressures them to leave because of their disability, that’s injury harassment. And it is never acceptable.
If you are able to return to work but with restrictions, keep in mind that your employer has the right to place you in any working position that fulfills those restrictions. And being given a new position based on your workplace injury does not exempt you from ever being fired. If your employer thinks you are doing an inadequate job, or you violate company policy, they have full right to fire you.
What do you do if you ARE fired
Being fired does not strip you of your workers’ compensation benefits. And at the very least, you should still receive a severance package.
If you were unlawfully fired, however, don’t just accept your severance package—file a lawsuit.
Compile evidence to show that your employer fired you solely because you were injured (or because you filed a workers’ comp claim). Easier said than done, I know. But if you can find documentation that proves you were following your doctor’s directions, you kept your employer informed of progress, and were otherwise the model worker before being fired, that’s already a huge help. And if you were fired shortly after getting hurt or right after filing a claim, that is strong evidence that those were the main causes of termination. Lastly, write down any indicative statements your employer might have made like, “don’t file a workers’ compensation claim,” “I can’t afford to have injured workers,” or “you’re a liability.”
Note: if your employer treats you differently because of your injury of resulting disability, you might be entitled to ADA protections as well.
If you’re unsure about whether your termination was unlawful, or what benefits you are entitled to, or how to proceed with a wrongful termination lawsuit, don’t hesitate to contact a workers’ compensation attorney. Because legal background or no, any employee who lost their job due to workplace injury or illness is entitled to benefits. And Barsoum Law is committed to help. We offer a personal focus and individualized care that large corporate firms do not. Our multilingual, multicultural team is dedicated to making sure you obtain the compensation you deserve.
If you have suffered a work-related injury or illness, Barsoum Law can and will help. We have represented thousands of injured workers throughout California the past 25 years. Contact us today at 877-299-1555 or info@barsoumlaw.com to schedule a consultation with a member of our team.