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I have been terminated from work while on workers comp

Union City, CA |

I got injured on the job July 2012 and have not been released from the doctor. Can they do this?

Attorney Answers 6

Posted

It is not illegal per se to fire a worker who was injured at work;. you need to contact an attorney to discuss the circumstances. Also, if you are a union member, contact your union rep.

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Posted

The answer is probably "Yes, they can." Having an on the job injury is no guarantee of continued employment. The employer cannot, however, discriminate against you or punish you for having that injury or seeking benefits. They are allowed to continue to run their business and if that means you are part of a general lay-off, a down-sizing, or replaced because they need someone there to do that job, yes, they can terminate you.

The flip side of the coin is also true. You don't have to go back to that employer if you don't want to.

If you've now been off work for over a year then this is looking like a serious injury. It may be time to consult with a good WC attorney. Find a good one here at www.avvo.com or at www.caaa.org. CAAA is the association for attorneys here in CA who represent injured workers.

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Posted

Yes. They cannot fire you BECAUSE you file a WC claim but they can fire you, without explanation, if you are an at-will employee. Your only protection would be 90 days under FMLA if you qualify. You would do well to consult an experienced Workers' Compensation attorney to protect your interests in that claim.

If this information has been helpful, please indicate by clicking the up icon. Legal Disclaimer: Mr. Candiano is licensed to practice law in Illinois and Indiana. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Links: CJCandiano@CandianoLaw.com http://www.CandianoLaw.com

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Posted

You haven't given us much information about your situation. Why do you think they terminated you? What reason did they give?

I'm not sure what you mean when you say that you "have not been released from the doctor." Do you mean that you have not been released from care, or released to return to work?

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Posted

Employment Law and Workers Compensation law frequently cross paths, I would recommend that you go meet with a workers compensation lawyer to discuss your situation and detail. They can tell you if workers compensation law has been violated or not.

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Posted

There's an Urban Myth you can't be fired while disabled and off work... and it's just a myth. IF YOU CAN SHOW the real reason for the termination was your request for Comp benefits, then the termination is a violation of Labor Code 132a.

But if the employer terminated you because of a business slowdown or other 'business necessity', showing you'd be let go whether or not you asked for comp benefits, then there is no 132a violation and you just get Unemployment Benefits when you are released to return to work.

WHEN SEEKING AT ATTORNEY BE CAREFUL TO FIND ONE WHO WILL FILE THE 132A PETITION. I get calls all day long from injured workers who hired an attorney, need a 132a petition filed to assert the discrimination, and their attorney refuses and directs them to find another attorney just for the 132a petition.

NO ATTORNEYS I know will take on a 132a Petition claim alone. it's three times the work for 1/2 the money. So be certain the lawyer you find drafts the 132a petition right in front of you (I can do mine in 3 minutes)... if they can't, that's not likely the lawyer you want.

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