Well, in one sense, employers can do whatever they want. So yes, you can be fired by filing a workers’ compensation claim but if that is the reason you are discharged it is illegal to do so.
A workers’ compensation attorney can help protect injured workers from improper or illegal firings due to filing a claim or during the claim. Filing a workers’ comp claim is not a legitimate reason for being fired. Labor Code Section 132(a), provides a cause of action specifically directed against an employer for discriminating against an injured worker for filing a workers’ compensation claim. They are difficult to prove.
Here are two examples to consider:
Let’s say we have a mom-and-pop shop, it’s a painting company and they have a couple of employees. One of their employees is on a ladder painting a ceiling, he leans, the ladder tips over, he falls and breaks his leg and injures his back. He is not going to be able to work for a long time. Now let’s say the employer is mad at him from getting hurt and says, “You know, I’m really angry at you, my insurance rates are going to go up as a result of this accident.” Now a week later, the employer has hired another painter and the injured worker discovers this and calls his employer. On the call, the employer tells the injured worker, “I’m sorry, you don’t have a job here anymore. You got hurt.” Is this employer in the wrong? Not likely. The number one defense used by this employer is called “Business Necessity.” What that means is, the employer has a small company, he doesn’t have a lot of employees, one of his main employees is injured, and to keep his business running he had to hire someone else. No court is going to find his actions discriminatory against the injured worker.
Now here’s another example with a small company. An employer sees a worker slip and fall. The worker breaks his arm and badly bangs his head. The employer says, “That was a stupid move. There go my rates for worker’s comp insurance. I can’t handle this. You’re fired.” This scenario possibly falls under Labor Code 132(a). You would likely need a witness to this event. If nobody saw this incident except the employer, it’s a “he-said-she-said” situation and they are difficult to litigate.
When a company has over fifty employees, there are federal rules to protect injured workers and workers in general for taking time off. This is provided by the Americans With Disabilities Act. In the above example, if the business had over fifty employees, they would have to hold the injured worker’s position open for twelve weeks if a doctor takes him off work due to injury, industrial or otherwise.
When someone is off on a work injury, ultimately, a lot of questions must be answered that can’t be answered initially. Sometimes injured workers completely heal and they don’t have any Permanent Disability and can go back to work. But how long did this take and can their employer take them back? For an employer with over 50 employees, there is no guarantee of a job after being off work for 12 weeks.
Sacramento Workers’ Compensation Lawyer
Hope this answers some questions you may have about employers firing injured workers. For any additional questions please call The Law Office of Alice A. Strömbom at 916-444-7557 for your free consultation. We’re here for you.
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