Can I Be Terminated While I Am Out On Workers Compensation?
A rather urgent question frequently posed by injured workers arises after they receive a termination letter from their employer.
This situation involves an individual who has been hurt at work, then off work for a period of time, and finally unable to return to work in their old position until some indefinite time in the future. During this process, while receiving medical treatment and recuperating, while receiving workers compensation benefits, the injured worker receives a letter, or a phone call, or an email from their employer telling them their position is being filled by someone else. Most injured workers in this situation are shocked.The specific question they pose is: “Can my employer do it”? Unfortunately, and to the surprise of many, the answer is generally “Yes”.
Your employer does not have to hold your position open for you indefinitely if you are out on workers’ compensation.
Most people have an innate sense that it’s unfair to take advantage of someone who has been injured, or who is operating under a disability.
Indeed, most people are probably aware of federal legislation that prohibits discrimination against individuals with disabilities in the job market in certain situations. Certainly, Maryland substantive law prohibits the termination of an individual simply because they have workers’ compensation case. However, there are competing interests. The law also recognizes that employers have a business to run, and cannot hold a person’s position open indefinitely, if that person is unable to do the job. A different piece of federal legislation provides that an individual has 90 days in any calendar year to tend personal or family medical issues. The common scenario I Attorney Eric T. Kirk see is one in which an individual is seriously hurt at work, and unable to return.
The employer holds the job open for 90 days, and then terminates that injured worker if they don’t have a release to return to work. It surprises many but this conduct is perfectly legal in most applications.
Now, if the injured worker has a written contract of employment or is the member of a trade union that has collectively bargained different protections, then the general rule may not apply. Certain government workers may also have additional protections. But these are comparatively rare situations. The injured worker who has lost their job because they are unable to return to work has other remedies through the workers’ compensation system. If the individual is unable to return to work at all, they may qualify for permanent and total disability. If they are ultimately able to return to work, but in a different capacity or a lesser capacity from that in which they were previously employed, they might be eligible for retraining.