Can I get fired if I’m on workers’ compensation?
One of the most unfair things that I’ve seen happen is that someone is now out of work for a reason that they didn’t ask for, and receive a notice that they are terminated. Unfair – absolutely. But is it against the law? That question is a bit more complex and could involve a couple of other areas of employment law. Let’s break it down.
The North Carolina Retaliatory Employment Discrimination Act prohibits an employer from retaliating against an employee for filing and/or pursuing a workers’ compensation claim. So, the textbook example of retaliation would be the scenario where an employee asks an employer for a workers’ compensation claim form, and they are then terminated the next day for some made-up reason.
The more difficult scenario to parse through is what happens when the employee is missing work because of their injury, and the employer terminates them after he or she misses several weeks of work. They are missing work because of their injury, so doesn’t workers’ compensation benefits protect them? Not necessarily. Workers’ compensation is not a job-holding benefit. Generally speaking, workers’ compensation benefits provide medical benefits to take care of the injury, and if the employee is losing work, it then provides wage replacement. It doesn’t however hold an employee’s job and the conceptual reason is because the legislation wants workers’ compensation system to be as non-disruptive to commerce as possible. The legislature wants employers to continue working, and if they need someone to step in and replace that hurt employee, that’s not going to be against the law per se.
However, the Family Medical Leave Act (FMLA), the employer’s leave policies, and the Americans with Disability Act as Amended (ADAA) may all come into play. So, for instance, let’s say an employee suffers a devastating injury and will be out for at least 8 weeks. If the employee has FMLA leave, then the employer cannot let them go because to do so would run afoul of FMLA, not necessarily workers’ compensation.
Knowing that an employee can be leg go on workers’ compensation, what’s the best course of action for an employee to protect themselves? That question should be answered on a case by case basis, but generally, establishing restrictions with the medical provider so that workers’ compensation benefits (wage replacement) kick in is one level of protection.
If you or a friend are getting nervous about your job security, and suffered a workers’ compensation claim, please reach out to our office 828-575-9700 or [email protected] to set up a consultation to discuss.
