Rights Can you be Laid Off while on Workers' Compensation Leave?

  1. Can your employer include you in a workforce reduction such as a "layoff" while you are on workers’ compensation leave?

    You are a legal secretary and have been suffering from carpal tunnel syndrome caused by my repetitive typing at work. Since developing this condition, you have been unable to work and took workers' compensation leave to deal with the injury. During that time away from work, your employer has informed you that you are being laid off as part of a general workforce reduction. Will being on workers' compensation leave prevent you from being included as part of a layoff?

    The law in every state prohibits an employer from retaliating against employees who take workers’ compensation leave and who apply for benefits under the scheme. Employers cannot demote, lay off, fire or harass employees because they have exercised their workers’ compensation rights. If an employer retaliates against an employee then the employee can take court action against the employer and would have a good chance to win such a lawsuit.

    But the answer to the question depends on the reason why you are being laid off from your job. If you are being laid off from work because you have not been at your job due to your injury, then this could be considered workplace retaliation against you because of your paid leave. Such a termination would be illegal. However, if your employer would have laid you off regardless of whether or not you were on workers’ compensation leave, then your employer is probably not doing anything wrong. The decision for your layoff would appear unrelated to your condition and would have happened even if you did not have an injury.

    You should take note that employers are not required to give special treatment to employees because they are on workers’ compensation leave. If the employee’s performance is poor in general then the employee can be fired even if they have filed a claim for workers’ compensation benefits. This is the case because the decision to terminate the employee was not based upon their injured condition but due to their substandard performance of their job at work. It’s the same logic above with a general layoff – employees on workers’ compensation leave can be laid off with other staff provided that they are not being laid off primarily because of the workers’ compensation leave.

    If you think that the reason you are being laid off is because of the fact that you were on workers’ compensation leave, then you should speak to the workers’ compensation board in your state. In order to protect your legal rights at work, you may also wish to speak to a labor and employment lawyer in your area and obtain a legal review of your situation.
    Employment & Labor:
    Workplace Harassment, Retaliation

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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