When you get injured at work, the systems in place seem pretty clear-cut. But what if something happens outside of work and you can’t do your normal job? Have you wondered, “can I be fired for work restrictions?”
As a general rule, if an employee is injured outside of work and requests work restrictions the are “unreasonable” for the employee’s position and alternate positions are not available, the employer may cut hours or terminate the employee.
But, Federal law requires that an employer provide reasonable accommodation to an injured employee even when injured outside the workplace.
It’s also vital to note that in at-will states, an employment contract can be terminated for any reason.
The law expects that the employer would make some accommodations so that the employee can continue working in some capacity. It could be reduced by offering reduced hours or redeployment to a section where work is lighter.
The truth is that in some cases, this is impractical or unfeasible, and the employer could decide to give the employee the pink slip.
In this article, we’ll explore the implications of an injured worker having work restrictions, being on light duty, whether an employer can refuse reasonable adjustments, and similar themes around what happens after one is injured and how one’s employment is impacted.
Let’s get started…
Suffered from a work-related injury and now being asked to come back to work?
Once you have recovered to a certain extent, your doctor may release you to go back to work. If not fully recovered, the doctor will release you to perform “light duty work.”
RT to share! pic.twitter.com/lOk5OlDyCP
— Marc Brown Law Firm, LLC (@MarcBrownLaw) January 29, 2021
Can you be fired while on light duty?
One can be fired while on light duty. Even while on light duty, a termination is legal if an employer can prove it was due to reasons such as poor performance, breaking work rules, or excessive absenteeism.
The law does not require that employers must offer light-duty work. And n some cases, and it is simply not practical.
Say a person whose work is to do data processing is so injured they can’t even type. Or a person who is required to carry a heavy load has a serious back injury. There may be no opportunity to have such people working in another department.
And, when employers do offer light-duty work, it’s expected that both parties would operate in good faith.
The employee can’t use the restrictions to shirk their duties or as an excuse to commit some infractions that affect productivity.
Of course, there could be cases where the employer is not acting in good faith, and perhaps the so-called light-duty work is too strenuous and difficult to carry out.
They may use this as an excuse to terminate the employment.
But in an at-will state, it would be difficult to prove that the employer is wrong because, in truth, they could terminate the employment for any reason!
Did you know that if as a result of your work-related injury or illness you are not able to return to your normal job duties, you may be eligible for reemployment services as provided by worker’s compensation insurance? #workerscomp https://t.co/tTIZrytgpI pic.twitter.com/D5p9ET4uia
— John Hernandez (@jhernandezlaw) April 25, 2020
What happens if my employer cannot accommodate my work restrictions?
If the employer opts to terminate employment due to the restrictions, the employee can file for unemployment, although that is not guaranteed. The employer is expected but not bound to accommodate work restrictions, especially if the restrictions were not due to a work-related injury.
Some employers may offer light-duty work with restrictions, in which case you may have to consult your doctor again.
This should be the first step so that you don’t worsen the injury. The doctor’s advice should be your guide.
In some cases, the doctor treating you may suggest a 4-week trial for you to go back to work. But it depends on the specific case.
It’s also conceivable that you could worsen the injury by going back to work.
So, it might be better to stay at home and focus on getting better while you collect temporary disability benefits. And the employer will absolutely want to make sure you don’t reinjure yourself at work.
After all, if the original injury wasn’t work-related, but you reinjure yourself at work, all of a sudden, it now becomes a work injury.
And employers don’t want that.
In cases where the employer cannot accommodate work restrictions and the injury was work-related, you’re better off consulting an attorney because each work injury is unique, and you need expert guidance.
Truth be told, worker’s compensation is technical and intricate, so no matter how unfair the employer might seem, you want the law on your side.
Don’t fight the battle alone. A good attorney would be able to help you access more worker’s compensation benefits.
For non-work-related injuries, the options are limited. But your best bet is to file for unemployment while you heal and search for another job.
Do you think one can get fired for gossiping at work?
The answer might surprise you. Check it out in a recent article of mine. While gossip may seem harmless, it can absolutely get you fired under certain circumstances.
Just click the link to read it on my site.
As a #California employee, you can’t be fired for filing a workers’ compensation claim for a workplace injury, requesting or taking time off for qualified family or medical reasons, or filing a complaint of workplace harassment against your employer. #ChampionForEmployees pic.twitter.com/jK9eHjMT2M
— Davtyan Law (@DavtyanLaw) October 24, 2020
Can I be fired while on workers’ compensation?
One can be fired while on workers’ compensation. However, it cannot be related to the workers’ compensation claim. The employer would have to prove the termination was due to poor work performance or a policy violation unrelated to the injury.
And, in “at-will” states, one’s employment can be terminated for any reason. But when in doubt about your workers’ compensation benefits, always consult a workers’ compensation attorney.
Consider that the following are valid reasons why you could get the pink slip even while your worker’s comp claim is on.
- Poor work performance
- Company financial problems
- Company restructuring
- Any other legal reason
So, while an employer can’t terminate your employment because you made a workers compensation claim, they can terminate your employment during your worker’s compensation claim.
Just as you can decide to resign from your job at any time and for any reason. In “at-will” states, the employer can also terminate your employment for any legal reason or no reason at all.
So, can an employee with a bad attitude be fired?
In a recent article, I explained that they can, and I outlined exactly how employers do it and what red flags they look for.
Just click the link to read it on my site.
Experiencing a work-related injury or illness can be incredibly painful and stressful, as you are not only forced to contend with serious medical concerns but also deal with things like financial expenses and workers’ comp claims. #accident #autoaccident https://t.co/qk5630AdtQ pic.twitter.com/pZKqfnKibF
— Finbury & Sullivan (@FinburySullivan) January 2, 2020
Can an employer refuse reasonable adjustments?
An employer can refuse reasonable adjustments or accommodations. The law expects them to make reasonable adjustments. However, they are not bound to that if they can show that such adjustments could adversely impact the business.
What seems reasonable to an employee may not be so to an employee. What is reasonable is a function of several factors. It is not as straightforward as it seems.
There is a concept of undue hardship which employers may invoke to back up their refusal to make reasonable adjustments.
It covers financial difficulty and even reasonable accommodations that are deemed extensive, disruptive, and substantial and can alter the nature of the operation of the business.
So, while the law expects employers to make reasonable adjustments, the Americans with Disability Act (ADA) does not require them to make adjustments that would impose an undue hardship on them.
The Act uses the following criteria in determining what accommodation constitutes undue hardship:
- Nature and net cost of the accommodation.
- The overall financial resources of the employer.
- The number of employees employed by the employer.
- The number, type, and location of the employer’s facilities.
- The employer’s operation, including:
composition, structure, and functions of the workforce; and geographic separateness and administrative or fiscal relationship of the facility where the accommodation will be provided.
If the employer opts to terminate employment due to the restrictions, the employee can file for unemployment, although that is not guaranteed.
- the financial resources of the facility;
- the number of employees at the facility; and
- the effect of the accommodation on expenses and resources of the facility.
The COVID-19 pandemic has exacerbated longstanding workplace bias against women, minorities and people with disabilities while posing a series of novel legal questions that could be costly for employers, more than a dozen experts told the EEOC. https://t.co/MXzusKKcUm ($) pic.twitter.com/SrZYIFQ0Oa
— Reuters Legal (@ReutersLegal) April 29, 2021
What is considered a disability under the EEOC?
According to the EEOC, a person has a disability if they can show that they have a physical or mental condition that substantially limits activities such as walking, seeing, hearing, learning, or the operation of a bodily function.
The EEOC stands for Equal Employment Opportunity Commission. It also includes having a history of a disability such as cancer that is in remission or an adverse employment action resulting in a physical or mental impairment lasting or expected to last 6 months or less.
A key point to note is that the impairment must be substantial, it can’t be minor.
To be considered as a disability, you must have a record of or be regarded as having such physical or mental impairment that limits a major life activity.
The ADA also covers situations where the impairment is perceived by others. As you know, a mental impairment may not easily be perceived by the one who has it. On its website, COVID-19 is recognized as a disability that an employer may be required to make accommodations for.
Are there circumstances where an employee can be fired over the phone?
Check out a recent article of mine to find out the answer. While it’s never ideal for an employer to handle any disciplinary actions over the phone or via email, there’s 1 time where it’s unavoidable.
Just click the link to read it on my site.
Of course, the EEOC protects a wide variety of conditions such as:
- An individual’s race
- National origin
- Sex (including sexual orientation, pregnancy, and gender identity)
- Genetic information
Can the Medical Leave Act prevent an employer from firing an injured worker?
The Family and Medical Leave Act of 1993 comes from the U.S. Department of Labor.
It allows “eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” (source)
Of the list of eligible reasons, the one that relates to an outside of work injury is: “a serious health condition that makes the employee unable to perform the essential functions of his or her job”.
Now it’s important to note that the law says “health condition” and not “injury”.
Still an employer may grant it, even if it’s not exactly a medical condition. The leave allows for up to 12 weeks of unpaid leave. At the end of those 12 weeks, you would have to return to work or be fired unless other additional leave options are available.
But it’s also important to point out that not every employer is a “covered employer”.
Those specific reasons are:
- The employer has 50 or more employees within a 75 mile radius
- You have to have worked for the employer at least 12 months (so if it’s a new job, you aren’t covered)
- You have to have worked at least 1250 hours in those 12 months
When in doubt, talk to the HR department at your place of employment.
How does the disabilities act help injured workers?
This refers to the Americans with Disabilities Act of 1990.
Essentially, it was created to prevent employers from discriminating against employees with specific disabilities.
Who exactly is covered under the ADA?
“a person who has a physical or mental impairment that substantially limits major life activities; has a record of such an impairment; or is regarded as having such an impairment. Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” (source)
So what does that mean exactly?
Really it means if you have a minor and temporary injury that limits your ability to do certain tasks right now, you probably aren’t covered under the ADA.
But always check with a labor law attorney or the HR department at your employers to verify. I am not a lawyer nor am I an HR professional.
Do employees’ rights change in a labor union?
Yes. You may have different rights if you are part of a labor union and that labor union has a collective bargaining agreement with your employer.
In that case, there may be specific agreements outside of Federal or local governments that dictate what happens when an employee is injured outside of the workplace and is not able to completely fulfill the job duties of their normal position.
In these cases, always consult with your union rep for clarification.
At times, folks sustain an injury at work or may have a disability. So what happens to their jobs? Can they still get fired? And when is it truly wrongful termination? Ultimately you do have legal rights. But it’s important to understand them.
In the article, we learned about work restrictions and discovered that even though the law expects employers to make reasonable accommodations, they are not bound to, and there are circumstances where they are justified.
Yes, one can get fired while on light duty, especially if you work in “at-will” states. State laws vary, so always consult a professional who knows the laws in your state. But an at will employee can technically be fired at any time for any reason.
We also learned it’s possible to be laid off during a worker’s compensation claim. And that an employee can refuse reasonable adjustments claiming undue hardship. And when are worker’s compensation benefits appropriate?
We wrapped up by looking at what the EEOC considers a disability.
I need to state that while I have decades of experience hiring, firing, and leading thousands of people, I am not a labor law attorney, nor am I qualified to offer professional or legal advice. I am also not familiar with the laws in every state and country. If you need professional or legal advice, you should seek out a qualified individual in your area.