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05 November 2014

Can I Get Workers Comp After Being Fired?

Since 2007, and the start of the Great Recession, unemployment has become a fact of life for many American families. In October of 2009, unemployment peaked at 10%, a number only topped by 1982’s record 10.8%.

That was really bad, but things are getting better in America. According to the Bureau of Labor Statistics, the unemployment rate is now 5.9% and dropping. New York State itself is slightly above the national average, at 6.2%. Remember, unemployment rates don’t take workers who have stopped looking for jobs into account, so those numbers are sure to be higher in reality.

Does Getting Fired Mean The End Of Benefits?

Uncertainty is now a fundamental condition for many workers in New York. And workers injured on-the-job may feel even more precariously positioned. According to the US Department of Labor, 12,099 claims for workers comp were filed in New York State in 2014.

Many injured workers are unable to work altogether while they recover. New York’s Workers Comp law does not require employers to “save your space” at work, unless your employment contract says otherwise. But a federal act, the Family and Medical Leave Act (FMLA), might. FMLA requires that covered employers allow their employees up to 12 work weeks of unpaid leave for medical emergencies. Obviously, workplace injuries are considered emergencies. To be eligible for FMLA, you need to:

  • have worked at a business for at least 12 months, prior to requesting leave,
  • have worked at least 1,250 hours over those 12 months, and
  • work at a location that employs 50 or more employees within 75 miles.

That last requirement excludes most construction employees. There are around 800,000 construction companies in the US and most are relatively small. But if you work for a large company, you might be covered. You’ll have to check with your employer to find out.

New York City has its own law, the “Earned Sick Time Act,” which might help, but isn’t nearly as generous. It was passed last year, in June 2013, and guarantees any employee of a company that employs at least 20 people five paid sick days a year.

On the other hand, many injured workers are allowed to continue working, in a reduced or less-taxing capacity. This is called “partial disability,” when your ability to earn wages is diminished, but not eliminated completely. So what happens if you get fired or laid off after that? Do you lose your benefits?


In most cases, getting fired won’t have any effect on the benefits you receive. Only three things can change your workers comp status:

  1. Returning to work (at your old job or a new employer)
  2. Your doctor’s opinion (if they think you’ve recovered enough to start working again)
  3. Not looking for work

What does that last point mean? If you are partially disabled and out of a job, you have a duty to remain “attached to the labor market.” That means that you have to keep looking for work if your doctor thinks you can handle it. You’ll have to prove that your searching for a job to New York State’s Workers Compensation Board if you want to continue receiving benefits.

Next, we’ll look at a more complicated situation.

Can I Get Fired When I’m Unable To Work?

Reasonably, some disabled workers fear that they’ll lose their jobs after filing for workers comp. In fact, many “partially disabled” workers choose to use normal health insurance to cover medical expenses, rather than “burden” their employers with a workers comp claim and give bosses a reason to fire them. Most doctors screen for job-related injuries now, so it’s a lot harder to get around workers comp than it used to be.

In contrast to “partial disability,” “total disability” is when you’re injured so seriously that you can’t earn wages at all. Obviously, you can’t work in this situation, but can your employer fire you?

YES, but it’s illegal for an employer to fire you simply because you filed a workers compensation claim.

If you think that you were fired for filing a claim, visit this page to learn more about filing a discrimination claim. But lots of workers get fired after filing workers comp claims for different reasons. Sometimes, there’s no stated reason at all. Is that okay?

YES, in many cases.

There are two sorts of workers: at will and contracted.

Most jobs in America are “at will,” which means that your employer can fire you, and you can quit, at any time and for (nearly) any reason. As long as those reasons are legal, like:

  • Poor Job Performance – employers usually have to warn you if your work isn’t up to snuff, before they actually fire you, and give you a grace period to improve. But this can be retroactive, so an employer can fire you for poor job performance even when you’re not currently working.
  • Gross Misconduct – Sexual harassment, on-the-job discrimination, violation of any work policies, or physical assault are all completely legal justifications for a firing.
  • Layoffs – Also known as being “let go,” layoffs usually occur when the company you work for isn’t doing so well. It’s not your fault, but there isn’t enough work to support a robust employee base or the company isn’t pulling in enough cash to pay you.

Contracted workers have contracts, and contracts generally list the valid reasons for firing. Many employers will add a clause to employment contracts that allows them to fire employees who are unable to work for a set period of time. So if you’re out on workers comp for a long time, it might be entirely legal for your employer to fire you. But it won’t stop your benefits.

Contact A Construction Accident Lawyer In New York City

The personal injury lawyers at Lipsig, Shapey, Manus & Moverman, P.C. have been helping New York’s injured workers for decades. Over 80 years of combined experience, our attorneys have demonstrated an extraordinary commitment to working families and their long-term prosperity.

Confused about your rights? Contact us today for a free consultation. Our attorneys can explain your situation and options in clear, plain language. Call 212-285-3300 or complete our contact form here.