C.B. Asked: Can My Employment be Terminated While I am Receiving Workers’ Compensation Benefits?

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On October 9, 2022, C.B. Asked:

“I have long COVID and I am currently unable to work. I am on a workers’ compensation leave of absence and I am concerned that my employer is going to terminate my position if I do not go back to work soon. Is my job protected while I am receiving workers’ compensation benefits?”

Answer:

Laws surrounding workers’ compensation vary from state to state, however, most states do not require your employer to hold your job while you are on leave. It is illegal for an employer to retaliate against an employee from filing a workers’ compensation claim, however, an employer may still terminate an employee who is on leave under certain circumstances. For example, Pennsylvania’s workers’ compensation law does not require employers to hold a position open for someone who is out recovering from a workers’ compensation injury, and they can cite any other reason to justify the termination. Geary v. United States Steel Corp. 456 Pa. 1974.

Similarly, Massachusetts does not require an employer to hold a position for an injured employee. However, an employee who is terminated while receiving workers’ compensation benefits must be given preferential treatment during the hiring process if they reapply to any suitable job the employee is qualified for. Mass. Ann. Laws ch. 152, sec. 75A.

There are some states that require employers to hold a position open for a period of time for an employee while they are on workers’ compensation leave. For example, Rhode Island requires employers to reinstate employees to their previous job for up to one year after the date of their injury, even if the employee has been replaced. R.I. Gen. Laws Sec. 28-33-47

An employee may have additional job protection through their employment contract or employee handbook. Employees should review their employment or union contract, to determine whether their employer is required to reinstate them to their previous position when they return from leave. If you are unsure how your employment contract handles workers’ compensation or medical leave, an employment lawyer from our Pandemic Legal Assistance Network (PLAN) may be able to provide additional guidance.

If an employee is on workers’ compensation leave for an extended duration, they may have additional options under the Family and Medical Leave Act (FMLA). FMLA provides extended job-protected leave under certain circumstances. An employee may use workers’ compensation leave and FMLA concurrently. For more information about FMLA, please review this post.

Workers’ compensation laws vary by state, so it is important to consult with an attorney as soon as possible if you are concerned about whether your employer can terminate your position while you are on workers’ compensation leave.