Can an employer harass or fire an injured worker for filing a workers’ compensation claim?
A common question we get asked by injured workers is whether or not they can be retaliated against after they have been injured.
What is retaliation?
“Retaliation” can take many different forms and shapes in terms of workers’ compensation and employment rights. Some examples of retaliation include:
- Termination
- Making an injured worker perform menial jobs
- Assigning them a less favorable opportunity
- Workplace harassment
- Subjecting them to peer pressure to return to work before the injured worker is ready
Can I be fired for a work injury?
The short answer is yes, you can be fired while receiving workers’ compensation benefits in Georgia. Georgia is an employment at-will state, meaning unless you have an employment contract or are the victim of discrimination, you can be fired for any reason.
But there are consequences for employers if it’s determined that they fired you because of your workplace injury.
If it’s not apparent that you were fired for making the claim, you will probably need to look for work and prove that the reason that you couldn’t find work was on account of your workers’ compensation claim and the lingering effects of your injury. If you can prove this, then you would be entitled to temporary total benefits.
In addition to concerns about lost wages after termination, many injured workers worry about how they will continue paying for health care. COBRA continuation coverage may be available in some cases to help bridge that gap.
Is light duty work considered employer retaliation?
An injured worker may be prescribed light-duty work restrictions by the authorized treating physician. Sometimes, these restrictions prevent the injured worker from performing their pre-injury job.
One example of this an individual who hurts their back while working in a warehouse. The doctor may place restrictions on how much weight they’re allowed to lift. In order to comply with these restrictions, the employer may offer the injured worker an administrative job until they heal. Sometimes, these jobs are as simple as sorting the mail.
If you’ve recently been reassigned to light-duty work, you may feel that this new job is not what you were hired for, and you’re correct. However, the law requires the employee to attempt this job if the authorized treating physician signed off on the specific job via a certain workers’ compensation form. In some instances, you may be required to perform this job in order to continue receiving workers’ compensation benefits.
Furthermore, if you earn less than you did before their injury in this new role, you may be entitled to total partial disability benefits, which is the difference between your average weekly wage (determined by averaging your earnings for the 13 weeks prior to the injury) and the wages you are earning on a weekly basis in your new, light duty job.
It should also be noted that the light duty job has to be meaningful. The courts have ruled that the offered job cannot be the type that serves no purpose. In other words, the light duty work cannot be staring out a window for 8 hours a day.
It’s important to contact an attorney at Gerber & Elkins before you do go back to work, to discuss the legal significance and statutory rights that occur with the offer of returning to work.
Can my employer reduce or eliminate contributions to health insurance?
Another example of employer retaliation is through payment of health insurance. While you are working, your contributions to health insurance are automatically deducted from your paycheck. You may not even know that it’s being taken out of their paycheck.
However, if you’re out of work and start to receive workers’ compensation indemnity benefits, you may be responsible to pay your own contribution. This may require you to work with the health insurance vendor or your employer’s human resource department. This is allowed under Georgia law.
Can my employer tell everyone (including future potential employers) that I got hurt on the job?
This is a difficult question that has many answers, depending on the case. There are many labor laws that address what a former employer can and cannot disclose to prospective employers.
In the workers’ compensation sphere, one avenue we have to protect the injured worker is through settlement. When a case is settled, we can demand that part of the settlement include a confidentiality agreement. This agreement can limit what can be revealed about the injured worker’s prior employment, including whether or not they can discuss any on-the-job injury.
Should I conceal a work-related injury to avoid employer retaliation?
Individuals are sometimes afraid to report their on-the-job injury for fear that they will not receive a promotion or be harrassed. Our response to this thinking is simple: How can you expect to do a good enough job to receive a promotion when you are physically limited in what you can do?
If you have any questions at your employer retaliating against you as a result of your on the job injury, please don’t hesitate to contact Gerber & Elkins. Our experienced workers’ compensation attorneys in Atlanta and Athens are ready to explain your rights and fight to get the justice you and your family deserve.
Having issues with your employer and not sure where to turn? We break down key differences between workers’ comp and workplace harassment or discrimination cases.
