Can an Employee Be Fired After a Work Injury?

The short and simple answer to this question is “yes.” However, there are a number of nuances that must be considered by either an employer or an employee in such a situation. Since I have been practicing nearly exclusively in the area of Workers’ Compensation law for the last 7 years, this question has been presented to me from both employees and employers. The answer, depending on each party’s perspective, can be vastly different.  If you are an employer, is it wise to fire an employee after he or she has been injured? If you are an injured employee, what is your recourse if you are fired?

For both the employee and the employer, of course, the best result after any work injury is a full recovery that allows the injured person to return to work at his or her regular job with the same wages. However, in the real world, this is often not the result, and when an injured employee is out of work for lengthy periods of time, it can be devastating to the small business owner, and take a serious financial and emotional toll on the employee.

The unfortunate reality of the situation for many injured employees is that they cannot return to their pre-injury job because it is simply too physically demanding.  A common example is the laborer who injures his back and can not return to performing the heavy lifting required by his line of work. Theoretically, he can collect Workers’ Compensation benefits for the rest of his life or until his disability ends, either by a Judge’s order, or upon his return to some type of job.  However, in many situations, an injured employee can be reluctant to return to heavy work, even assuming that his injury improves to near pre-injury status.  I frequently hear injured workers express the fear: “if I go back, I will just end up hurting myself again.”

Conversely, employers in this situation do not often offer suitable jobs to their recovering employees. It is not uncommon for an employer to view an employee who has had a work injury in a different light, and be concerned that taking that person back to work would create a “liability.” As a result, such employers are disinclined to re-employ their injured workers, even if they had previously done good work, and even if the employer could otherwise offer light duty work. Additionally, if the person was hired to do a specific job, the vacancy caused by the injury will likely have to be filled by someone who can physically perform the tasks required. So, once the injury takes place, both the employer and employee have reasons to not continue the injured worker’s employment.

One factor that both parties must consider is that Pennsylvania is an “employment at will” State, meaning that an employee is not legally “entitled” to her job. Her job can be terminated at any time, absent a contract to the contrary. So, the employer might legally be able to terminate the injured worker who can no longer perform her job, but it must be aware of the additional problems that termination may create, especially if it occurs soon after the injury.

First, the employer must realize that an injured employee may recover more quickly than initially expected. If the employer eliminates the job of the injured worker, the return to work may take that much longer. Consider that the average unemployed person may take up to four to six months to find suitable employment. How much longer will it take for an injured employee to find a new job, even though he may have recovered fully, when his job is no longer available to him through the employer? Even if the worker has fully recovered, when he applies for other jobs, not every employer will hire someone who left his prior job due to a work injury.

In most cases the employer will remain liable to pay the injured employee’s Workers’ Compensation benefits so long as he or she remains unemployed due to the work injury.  Absent a job to return to, injured workers will usually be less inclined to return to work unless they find jobs with similar pay to their pre-injury jobs. If the pay is less, the time-of-injury employer will usually be liable to pay partial disability benefits (2/3 of the difference between the worker’s new wage and her pre-injury wages). Thus, employers are usually well-advised not to fire an injured worker without giving that person ample time to attempt to recover and return to work.  Firing someone too soon can have repercussions in the Unemployment Compensation realm as well.

For the employee, there is really no job protection under the Pennsylvania Workers’ Compensation Act. If the employer simply can not function by holding the job open, there is almost no way for the employee to force the issue.  Indeed, in some cases the employer can terminate health insurance benefits even without firing the employee (although they must offer appropriate COBRA benefits, if applicable).

In the short term, the Family and Medical Leave Act (FMLA) provides some protection for injured workers who are eligible for such protection. While the Workers’ Compensation Act affords no such protection, the FMLA may require an employer to keep the injured worker’s position open, without pay, for up to 12 weeks. However, at the end of those 12 weeks, the employer’s responsibility ends and employment can be terminated.

The Americans with Disabilities Act (ADA) can also provide tangential protection for injured workers. Without going into a lengthy explanation here, suffice it to say that many employers do not want to risk the exposure of a potential countersuit from an injured worker if the worker is termination because of a disability under the ADA.

The only other way for an employee to ensure that his employer keeps his job open is through a collective bargaining agreement or a voluntary employer policy. Some employers maintain a policy of retaining injured employees for a set period of time after their disability starts. Once that period expires, the employer will most likely terminate the relationship, and consequently, also cancel any benefits that came with the relationship. Collective bargaining agreements and employer handbook policies may operate to amend the typical at-will employment relationship.

Under very limited circumstances, a terminated employee may bring a claim for wrongful termination, but considering the difficulty of litigating such cases, employers will often take that chance, rather than continue to hold a job open for an injured worker.

In short, any employer who is considering firing an injured worker should be aware that the termination may create yet another lawsuit, or, at best, make the Workers’ Compensation case stay open that much longer. Injured employees should be aware that their jobs can be terminated, and that there is only limited job protection under the law. Either party when presented with these questions would be well-advised to consult experienced legal counsel.