What happens if you are laid off or fired after a work injury? Q&A with Attorney Drew Gannon

Drew P. GannonMany people are surprised to learn that employers generally do not have to hold a position for you indefinitely following an injury on the job. Your position may be filled or you may even be laid off.

As a workers’ compensation attorney for more than 20 years, I’ve seen numerous cases where workers have been unfairly treated following a job injury.

Here are answers to some of the most commonly asked questions when someone finds himself or herself on workers’ compensation leave.

What happens if I’m laid off while on workers’ compensation leave?

If you are let go while out recuperating from a work injury, the workers’ compensation insurance company has to continue paying for your wage loss and work-related medical benefits, even though you are no longer employed. Unfortunately, an employer will oftentimes stop funding your health insurance while you are out of work, but you should be given the option to continue your coverage at your expense.

What happens if I’m brought back to work, then laid off?

If you are back to work with restrictions and are then laid off, the workers’ compensation insurance company should reinstate your wage loss benefits immediately, even if your employer lays off many people or goes out of business completely.

If you are brought back to work without any restrictions and are then laid off, you must prove that your layoff was because of your workers’ compensation claim. Factors such as timing, animus (the boss becoming angry about the workers’ compensation leave) or a pattern of adverse actions against employees who file workers’ compensation claims could be reasons for a case.

How can I protect myself from layoffs following a work injury?

Make sure you do not take any steps to voluntarily quit or accept a voluntary layoff, as this will affect your ability to collect wage loss benefits. In addition, if you have had a work injury, sometimes an employer or supervisor will make your return to work with restrictions uncomfortable to try to entice you to quit, which is something you should never do. You should communicate any difficulties you are having with performing the physical aspects of your job to your doctor so that your restrictions can be revisited if necessary.

What should I do if my employer made an offer for me to return to work, but it is less pay or a different position that I think is unacceptable?

First, if the employer chooses to bring you back to work, they must send you a document called a Notice of Ability to Return to Work before a return-to-work offer is made.

If a valid job offer is made and you do not return to work, you could jeopardize both your workers’ compensation wage loss benefits and your employment with your employer. If you are brought back with restrictions, employers are not required to keep your rate of pay the same as prior to your injury, but the workers’ compensation carrier would have to make up any wage loss.

You should consult a workers’ compensation attorney as soon as it appears you may be asked to return to work to discuss your options and obligations.

If you or someone you know has questions regarding workers’ compensation benefits, call the KBG team. We’re here 24/7 to get the Results You Deserve®.