You can be fired while on Workers’ Comp, but there’s a lot more to consider than what can be provided in a yes-no answer. You still may have means to protect your income if fired while on Workers’ Comp.
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Being Fired While on Workers’ Comp. and the Family Medical Leave Act (FMLA)
While you can be fired while on Workers’ Compensation, employees who are covered by the Family Medical Leave Act of 1993 receive up to 12 weeks of unpaid, job-protected leave. The protections from the Family Medical Leave Act (FMLA) often are applied at the same time as NY Workers’ Compensation Benefits. The Family Medical Leave Act does not provide pay or benefits, but protects your right to return to your job within the 12 week period.
Not all employees are covered by FMLA protections. Generally, employees who are protected by the FMLA are given a written notice to their rights under the law. This notice is usually given around the same time a Workers’ Compensation case begins.
What Do You Need to Be Qualified under the FMLA?
In order to qualify under the FMLA you need to have the following:
- Have worked for a covered employer for a minimum of 12 months
- Have completed at least 1,250 hours of service with the employer in the 12 months preceding the start of FMLA leave
- Be employed at a site where the employer has at least 50 employees within a 75-mile distance
Being Fired While On Workers’ Compensation: An FMLA Example
For example, John files a NY Workers’ Compensation claim. John then begins his 12 weeks of unpaid, job-protected leave as part of his rights under the FMLA. During this 12 week period, John may be receiving Workers’ Compensation benefits.
During this 12 week period, John is fired while on Workers’ Compensation. John’s termination would be unlawful in this case, as he was fired during the protected 12 week period.
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Is Being Fired While On Workers’ Comp. Discrimination?
According to New York State law, being fired while on Workers’ Compensation is not discrimination. This is because NY law allows employers to replace you if you’re unable to perform your work.
However, you cannot be fired while on Workers’ Comp. just for filing a NY Workers’ Compensation claim. You also cannot be fired for being a witness in another person’s Workers’ Compensation claim. If you were to be fired while on Workers’ Comp. with the only reason being that you filed for Workers’ Compensation or acted as a witness in another person’s Workers’ Compensation claim, this would be considered discrimination under NY workers’ compensation law.
Being Fired While On Workers’ Comp.: Section 120 Claims
If you’re fired while on Workers’ Comp. and your job termination was solely because you filed for Workers’ Compensation or you were a witness in another person’s Workers’ Compensation claim, you can make a Section 120 claim.
A Section 120 claim only applies to these two circumstances of wrongful termination. Because of this, it’s very difficult for a worker to prove a Section 120 claim. Most employers have a deep understanding of the law as it relates to Section 120 claims, and therefore are very careful with their reason for firing you while on Workers’ Comp.
What Happens After a Section 120 Claim is Filed?
Once you file a Section 120 claim, the following steps typically occur:
- Acknowledgment: The relevant authority or agency acknowledges receipt of your claim.
- Review and Investigation: The claim is reviewed and investigated to gather all necessary information and determine its validity.
- Response from the Opposing Party: The party against whom the claim is filed is notified and given an opportunity to respond.
- Evaluation: All evidence and responses are evaluated to make a decision.
- Decision: A decision is made regarding the claim, which could result in approval, denial, or a request for further information.
- Notification: Both parties are notified of the decision and any subsequent actions that need to be taken.
- Appeal Process: If applicable, there may be an option to appeal the decision if either party is dissatisfied with the outcome.
Specific steps may vary depending on the nature of the claim and the governing rules of the particular jurisdiction or agency. Workers’ Compensation can get complicated, confusing and often overwhelming. MCV Law’s Workers’ Compensation Lawyers can guide you through the entire process, answering any questions you may have along the way. People represented by a Workers’ Compensation lawyer tend to have better outcomes than those who do not have legal representation.
Being Fired While On Workers’ Comp: Unemployment Insurance
After being fired while on Workers’ Comp., you still may have ways to protect your income and provide for you and/or your family. If or when you’re fired while on Workers’ Comp., you may be able to collect unemployment insurance benefits if you have a partial degree of disability.
Have Questions? Let’s Talk.
Determining if you were legally fired while on Workers’ Comp. can be very difficult to decide. The specifics to each case matters a lot in answering the question if you can be fired while on Workers’ Compensation.
For over 30 years, our Workers’ Compensation lawyers near Syracuse, NY have protected the rights of injured workers. To get a free case evaluation from our experienced attorneys...