Getting Fired While on Workers’ Compensation

Unfortunately, workers who get hurt on the job commonly face the prospect of getting fired while they are out of work. Getting terminated can open up a lot of different questions:

• Do I still get paid for lost wages?
• Do I still have the right to see a doctor?
• Is there anything else that I can do?

First and foremost, if an employer has accepted your claim and admitted your right to compensation and medical compensation either through filing a Form 60 and/or letting the time period expire after filing a Form 63, an employee’s right to medical treatment will continue.

When it comes to an injured employee’s right to continue to receive weekly temporary total disability (TTD Benefits), it gets a little more complicated.

Below are some scenarios that outline possible cases.

Scenario 1: Workers’ Compensation Claim Not Started

Scenario 1 Worker: “Boss, I just tripped over that rope, twisted my knee and I am in a lot of pain.” Boss: “You’re fired.” Worker: ………….

Obviously, in this scenario, the worker has yet to even get his or her case going so getting benefits “continued” is not a part of the process. It is important to note that just because the worker got fired, it does not mean that he/or she loses the right to file a workers’ compensation claim.

In cases like the one above, it is especially important to talk to an experienced workers’ compensation lawyer as soon as possible. Not only does the claim need to be filed with the NC Industrial Commission, but a claim should also be initiated with the employer’s workers’ compensation carrier. Finding that carrier, giving them the right information, and making sure that they are aware of the circumstances quickly can be challenging even for an experienced lawyer. Once the claim is opened, the carrier will conduct an investigation and determine if they will accept or deny the worker’s compensation claim.

In cases like this, you may also have additional claims against the employer that go beyond workers’ comp benefits.

North Carolina is an At-Will Employment State

North Carolina is what is known as an “at-will employment” state. “At will” states give a lot of power to the employer. Basically, an employer can fire an employee at any moment for any reason, or for no reason at all unless there is a specific employment contract or law protecting the employee.

One of those protective laws is the Retaliatory Employment Discrimination Act (REDA). REDA claims protect workers from being fired for engaging in certain protected activities. One of those protections under REDA is that an injured worker cannot be fired for the act of filing a workers’ compensation claim.

You can click here to answer a few easy questions and see if you should  file a complaint under REDA. These cases are initially investigated by the NC Department of Labor. After the investigation, the Department of Labor makes a decision as to whether they will take the case or issue a “right to sue” letter by which the complaining party can go and hire their own private attorney for assistance.

In addition, if you feel that you were fired because of an act or acts of discrimination, sexual harassment, etc., you may also have an additional State and/or Federal claim against the employer.

Scenario 2: Refusal of Suitable Work

Scenario 2: Worker: “Boss, I got this work note but it restricts me to only sit-down work for the next six weeks.” Boss: “Great, we have this massive pile of old documents that need to be shredded.. We will get you a shredder and a chair and you can get to it.” Worker: “That sounds absolutely miserable and I refuse to do it.” Boss: “You’re fired”

In this scenario, we are looking at a whole bunch of different issues. First, in terms of the miserable job of having to sit in a chair and just shred paper, the worker would likely have to take this job if the assignment occurs before the employee is told that they have reached maximum medical improvement (MMI). In pre-MMI situations, the employer can offer the injured worker what is called “rehabilitative” or “other noncompetitive employment”. In other words, the employer can find busy work for the injured worker that they would not normally hire a person to do.

If the employee refuses to accept the job, the employer and/or insurance company has the right to file a Form 24 and seek an order to suspend the payment of compensation. NCGS § 97-32 states that “if an injured employee refuses suitable employment…the employee should not be entitled to any employment during the continuance of the refusal unless, in the opinion of the Industrial Commission, such refusal was justified.” A good example of “justified” would include a situation where the employer offered work at a different facility that was 100 miles from the injured worker’s home.

It is important to note that the statute requires an “order”. The employer/carrier cannot just decide to stop paying benefits on their own.

If the worker does agree to comply with the job, they would have the right to have their benefits reinstated either voluntarily by the employer/insurance company or by order of the Commission.

In terms of the termination, the worker is not going to have a whole lot of recourse here outside of workers’ compensation (see “At Will” employment as it is described above).

Scenario 3: Constructive Refusal

Scenario 3: Employee: (Gasping and out of breath) “Boss, there was a car wreck, my phone died and I am so sorry that I could not call in. I know I am 20 minutes late but I promise that I am going right to my paper shredder and this won’t happen again.” Boss: You’re fired.

If there is nothing in the employee handbook or work contract that establishes a points system, etc. that lays out a series of warnings before termination, the employee is again likely out of luck when it comes to the termination itself. If the employer violated the contract or their policy, there may be some recourse for the injured worker.

When it comes to the NC Workers’ Compensation Act, the employer will likely seek to terminate TTD based upon a “constructive refusal” to accept suitable work.

NCGS § 97-32 and some specific case law come into play in this type of situation. One case from the NC Court of Appeals Seagraves v. Austin Company of Greensboro, 472 S.E.2d 397 (1996) and another from the NC Supreme Court McRae v. Toastmaster, 579 S.E.2d (2003) give us the rules in a situation like this. Seagraves finds that:

“the employer must first show that the employee was terminated for misconduct or fault, unrelated to the compensable injury, for which a nondisabled employee would ordinarily have been terminated. If the employer makes such a showing, the employee’s misconduct will be deemed to constitute a constructive refusal to perform the work provided and consequent forfeiture of benefits for lost earnings, unless the employee is then able to show that his or her inability to find or hold other employment of any kind, or other employment at a wage comparable to that earned prior to the injury, is due to the work-related disability.”

Basically, if you are fired for doing something that would get any other employee fired, you may lose your right to receive additional compensation.

It is again important to note that the employer must provide evidence to the Commission to have benefits cut off; they cannot make that decision on their own.

It is also important to note that the worker can also present evidence that he or she cannot find a new job because of restrictions from  the injury that was a part of the workers’ compensation claim. If the worker can make this showing, benefits cannot be terminated or they could be reinstated after a suspension.

Scenario 4: FMLA Time Frame Expires

Scenario 4: Worker: (Doing everything right and happily going to the mailbox because it is the day he or she gets a weekly TTD check). Checks mail and opens letter… Boss: “Dear Worker, we can no longer hold your position open anymore and we have now filled that spot. We wish you the best of luck.” Worker: …………

The Family Medical Leave Act (FMLA) provides certain employees in certain workplaces up to 12 weeks of unpaid, protective leave per year. Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Companies that do not meet the 50-employee standard do not have FMLA obligations to their workers.

While out on FMLA, the worker’s job is protected, but once that time frame expires, the employer can fill the spot that was vacated by the injured worker.

Filling the job and letting the injured worker go can be a detriment to the employer and insurance carrier. The object of the Workers’ Compensation Act in NC is to try to get the injured worker back on the job. Yes, this can take a while, but it is always easier to get the injured worker back to his or her job with the employer than it will be to find a job with a new employer.

The above scenarios are just a few examples of situations where an employee loses his or her job while on workers’ compensation. These scenarios are by no means exhaustive. If you have been terminated while on workers’ compensation or if the employer is trying to suspend your benefits, you should consult an experienced attorney as soon as possible.

Don’t wait to contact a North Carolina Workers’ Compensation Attorney

Workers’ compensation is a vital resource for employees who suffer work-related injuries or illnesses. To ensure you receive the support you deserve, it’s essential to avoid common pitfalls. Remember not to delay reporting injuries, seek prompt medical attention, and contact an experienced lawyer.

The personal injury and workers’ compensation lawyers at Wilson, Reives, Silverman & Doran in Sanford, North Carolin, are here to provide you with trusted, experienced, effective legal counsel. We’ll focus on your compensation case, allowing you to focus on recovery and moving forward in your life.

We offer a free consultation in which we help you make the best legal and financial decisions. To set up your free consultation, please contact us here or call us at (919) 928-5839.