Unlawful Termination Due To Injury

I’ve been fired after I reported a workplace injury. What should I do? What are my rights?

 

Do Not Quit or Walk Off The Job.

Unlawful Termination pinkslipIn North Carolina, you are protected by specific provisions that prevent unlawful termination when you are hurt at work. Both Federal and NC State law offer some protection to injured workers and there are some financial incentives the employer has to keep you working. The most important thing in a workers compensation case is to NEVER quit. If there is a problem, make sure the employer is the one who initiates the termination. If you quit or walk off the job, it is very difficult to make your worker’s compensation case.

Federal Protection.

There are two main federal laws that apply in workers compensation case—the FMLA and anti-discrimination laws, primarily the American’s with Disabilities Act. Under the FMLA, generally, an employer with more than 50 employees must give you 12 weeks unpaid leave in a calendar year if you are unable to work because of a physical or mental illness or injury. In worker’s compensation cases, this is effectively paid leave since you will be paid your temporary total disability payments while you are out of work. In addition, the employer must keep your health insurance coverage and pay their portion of the premium for this period of time. The downside is the FMLA only applies to employers with greater than 50 people, only lasts for 12 weeks, and you must have generally worked one year before you are eligible.

Under the American’s with Disabilities Act, an employer cannot terminate you because you have a disability and must make reasonable accommodations for any disability you have. In worker’s compensation cases this is tricky, since you must also be able to perform the essential functions of the job in question for an accommodation to be required. This can be a complicated topic and one that requires an individualized assessment to determine the best course of action, since if you make the argument that you can perform your job; you are potentially placing your worker’s compensation temporary disability benefits at risk.

Call me now to talk about your situation. 336-553-1661

 

State Protection.

Under state law, there is the Retaliatory Employment Discrimination Act or REDA. This is administered by the state Department of Labor and prevents unfavorable employment actions (termination, demotion, etc.) in retaliation for filing a worker’s compensation claim. The employment action must be proven to be a result of filing a claim as opposed to other factors which can be difficult to prove, but it can be an effective tool to prevent adverse action.

 

Employer’s Incentive to Keep You Working.

Probably the biggest protection against unlawful termination is really a practical one. As long as an employee has work restrictions, if the employer does not offer alternative employment they must pay worker’s compensation benefits. Therefore, it is often a choice of them paying you to work, or paying you to sit home. If the employer terminates you, they effectively give up the right to offer alternative duty work. As a result, there is a strong financial incentive for them to keep you employed.