Can You Be Fired While On Workmans Comp?

Many people seeking to file for workman’s comp are nervous about the reaction from their employer. They’re concerned that their employer will fight the workman’s comp claim. They’re also worried about being fired or demoted for filing.

Can you be fired while on workers’ comp? This is an important—and common—question. Keep reading to find out the answer! Today, we’re discussing everything you need to know.

Ohio and At-Will Employment

Ohio is what’s called an “at-will” employment state. What does at-will mean?

Essentially, at-will employment means that an employer can terminate an employee for any reason, at any time—with a few important exceptions. An employer doesn’t need to have good cause to let an employee go, nor does the employer need to give the employee notice. (At-will employment also means that the employee can leave at any time, for any reason.)

This is different from contract employment. Contracts outline the terms of employment, including the length of employment.

Most workers in Ohio are at-will employees. However, there are a few exceptions:

• Union members
• Contract employees
• Some government workers

Unless you are part of a union or under contract, it’s usually safe to assume that you are at-will. That’s because, unless your employer says otherwise, the law presumes that you are at-will. Still, it’s always a good idea to double-check. Read over your initial employment contract (if you signed one) or your company’s employee handbook. Does your employer mention that you can be let go for any reason, at any time, or does your employer say that employees are only let go for good cause?

However, as we mentioned above, there are a few key exceptions to at-will termination.

An employer cannot legally terminate an employee for any of the following:

• Illegal discrimination: An employer can’t make employment decisions—including firing—based on an employee’s race, color, religion, sex, national origin, age, disability, or veteran status.
• Retaliation: Employers can’t fire or demote employees for engaging in legally protected activities. Protected activities include claiming minimum wage or overtime compensation, engaging in union activities, refusing to perform illegal or discriminatory practices, whistle-blowing, and filing for workers’ compensation.

Under state and federal law, your employer may not fire you or otherwise retaliate against you for filing for workers’ comp. But that doesn’t mean you can’t be fired while on workman’s comp! Let’s talk about the difference between retaliation and a legal filing while on workers’ comp.

Was It Retaliation or Not?

Unfortunately, just because you’re on workman’s comp, it doesn’t mean your job is always safe.

It’s true that your employer may not fire you for filing for workmans’ comp and for receiving treatment. Your employer should keep you on until you recover from your injury or reach maximum medical improvement (MMI). At that time, you and your employer can discuss any medical restrictions you might have and determine if your workplace can accommodate them.

However, your employer is still legally allowed to let you go at any time—as long as the reason isn’t because you filed for workers’ comp.

Legal reasons an employer could let you go include:

• Absenteeism or other attendance issues
• Poor job performance
• Insubordination or otherwise breaking company rules
• Harassment or other discriminatory behavior
• Theft or other criminal behavior
• Your employer is experiencing layoffs
• After recovering, you have permanent work restrictions that make it impossible for you to do your job, or your employer isn’t able to offer you an alternative job with fewer physical requirements

However, if none of the above apply in your case, it could be retaliation. Workers’ comp retaliation includes firing, of course, but that’s not all.

Retaliation can also include:

• Demotion
• Being passed over for a promotion
• Negative changes in job position or duties
• Scheduling changes that negatively affect you
• A lack of changes in job position or duties—for example, your employer refusing to move you to “light duty” after a back injury
• Decreased pay or wage theft
• Disciplinary actions like receiving a poor performance review or being put on a performance improvement plan (PIP)
• Bullying, harassment, or threats from your superiors
• Negative references for other employment

What Are Your Options After Retaliation?

It can be hard to determine why you were let go. After all, employers rarely come out and tell their employees, “You’re being fired because we don’t want to pay for workers’ comp.” How do you know if it counts as retaliation or not? And what are your options if it was retaliation?

If you suspect that you were retaliated against, you have a couple of options. You can report your former employer to the Equal Employment Opportunity Commission, and you can talk to an attorney.

A qualified workers’ comp attorney will take a look at your situation and help you determine if you experienced retaliation. If your firing was illegal, you have the option of filing a lawsuit against your former employer. You don’t have to let your former employer get away with illegal activity!

If you have more questions or would like to talk about your case, we’re here for you. Contact Casper & Casper today to speak to an experienced workmans’ comp lawyer.