Retaliatory Discharge: Being Terminated While on Workers Comp

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Although it is rare, occasionally an employer adds insult to injury by firing an employee for filing a workers comp claim.

It’s called retaliatory discharge, and as the name implies, it results when your employer fires you in retaliation for engaging in a legally protected act, such as taking part in union activities, reporting wrongful conduct or filing a valid workers compensation claim.

What is Retaliatory Discharge?

While most employers have wide latitude to dismiss employees for any lawful reason or no reason at all through the concept of “at-will” employment, retaliatory discharge is a form of wrongful termination that is illegal.

If you believe you were let go from your job solely because you filed a workers comp claim, you may want to consult with a lawyer and consider suing the employer. Be forewarned, however, that believing you were discharged in retaliation for filing a worker comp claim and proving it are two very different things.

How to Prove Retaliatory Discharge

Courts have ruled that workers can sue their employer for “retaliatory discharge” if they are fired as a direct result of filing a workers comp claim.

The Illinois Supreme Court laid out grounds for a retaliatory discharge suit in the case of Clemons v. Mechanical Devices Co.:

  • That the person was an employee before the injury;
  • That the worker exercised a right granted by the Workers Compensation Act;
  • That the worker was discharged; and
  • That the discharge was causally related to the worker filing a claim under the Workers Compensation Act.

While it may sound simple enough, winning a retaliatory discharge lawsuit is no easy task.  That’s because, as stated previously, employers generally are not required to provide a reason or explanation for firing an employee. Rather, it’s up to the employee to prove that he/she was fired as a direct result of filing a workers comp claim. And unless an employer is stupid enough to come right out and admit as much, workers are generally left with few options to try to prove their case other than circumstantial evidence, which is often given less weight by juries.

Mark Berg, a San Francisco Bay Area lawyer who has litigated workers comp cases for over 25 years, said successful suits for retaliatory discharge are rare. He pointed to a judge who told him that in 15 years on the bench, he had only seen half a dozen valid wrongful termination cases tied to workers comp claims.

“Employers are pretty sophisticated about covering their own tracks,” Berg said.

That being the case, it’s important for a worker in this situation to collect as much convincing evidence as possible and compile copious records of their work history and their employer’s actions, as well as any evidence of similar behavior toward other employees. If there is a pattern of dismissing employees who filed similar claims, that could help sway a jury, as can a series of stellar performance evaluations leading up to the discharge, with little or no documentation that the employee’s performance had been inadequate.

The case of Luis Enrique Cristain provides a roadmap of the type of evidence a plaintiff will need to produce to have any hope of prevailing in such a suit. When the Texas worker was injured in a scaffolding accident in 2015 while cleaning a ceiling for his employer, Hunter Buildings and Manufacturing, he filed a workers comp claim and was fired less than two weeks later.

The U.S. Court of Appeals for the Southern District of Texas found that he had grounds to sue for retaliatory discharge after producing evidence that showed, among other things, that Cristain had no disciplinary record in his job role as a “helper” before being abruptly transferred to a new job as a “flow monitor” for which he had not been trained; that Cristain’s supervisor did not follow the company’s progressive discipline policy before he was fired; and that of the 11 other Hunter employees who had filed workers comp claims over the preceding three years, two had been fired within 30 days of making the claim, four others were terminated within 90 days, and one other was dismissed within 150 days.

Texas courts have ruled that circumstantial evidence that can be used to establish retaliatory discharge in a workers comp case may include failure to adhere to established company policies; discriminatory treatment in comparison to similarly situated employees; evidence that the stated reason for the discharge was false; and the length of time between the filing of the claim and the discharge.

Can You be Terminated While on Workers Comp?

Yes, but generally only if the termination is unrelated to the fact you are on workers comp. Think of it in similar fashion to someone who is on maternity or paternity leave, or simply on sick leave with a nasty bout of the flu. Your employer can’t fire you simply for exercising these rights, but those rights don’t provide you any special job security that you wouldn’t otherwise be entitled to if you hadn’t filed the claim or gone out on leave.

Firing an employee simply because the person filed a valid workers comp claim and/or is off the job because of the injury constitutes retaliatory discharge, which is illegal. But if the company decides to downsize while you are on workers comp, you can be laid off in the same way any other employee can.

What if the injury renders you unable to work for an extended period of time and the company has to hire someone else to perform your duties? Again, laws prohibit employers from dismissing you simply because you are unable to work while you are recuperating from a legitimate work-related injury. But there are limits to that protection. One of those is Maximum Medical Improvement (MMI), which refers to the point at which your condition stemming from the workplace injury is deemed unlikely to improve with further treatment. At this point, the company can choose whether to accommodate your injury with a different role or job duties that you are capable of performing, or let you go because you are no longer able to fulfill the job’s requirements. In the latter case, you may be entitled to additional workers comp benefits, including vocational training or disability payments, because your injury cost you your job.

There are also circumstances under which an employer can discharge the injured worker, even without an MMI designation, if the worker has been off the job for a “reasonable” period of time or the employer has a “reasonable” belief that the employee won’t be able to return to the job, Berg said. He gave the example of a recent case he worked on where an employee involved in the repair of heavy machinery lost part of his thumb. After many months, the employer terminated him because it was clear that he would not be returning to the job and it had a “good-faith need to replace him.”

It may all sound somewhat convoluted, so if you are terminated while on workers comp, here’s the question to ask yourself when trying to determine if your employer acted illegally: Were you dismissed because you were on workers comp or while you happened to be on it? If it’s the former, and your employer cannot produce a legitimate, lawful reason for letting you go unrelated to your injury and claim, you may have the basis for a retaliatory discharge lawsuit. If, however, your dismissal is part of a larger job force reduction, or because the company deems your work performance inadequate, or the injury has rendered you permanently unable to perform required job duties, the company in all probability has acted within its rights.

What Happens to Your Benefits if You Lose Your Job

If you lose your job before you have fully recovered from your injury, your workers comp benefits should continue after you are dismissed. The major exception would be if you were fired for cause, such as engaging in illegal conduct on the job or violating company policy.

You may also be eligible to have your benefits reinstated if you returned to work with restrictions because of your injury at the time you were dismissed. Because you have not fully healed from your injury, you may be able to continue receiving workers comp benefits as you look for another job and continue to recover.

About The Author

Craig Lazzeretti

Craig Lazzeretti is a career journalist based in the San Francisco Bay Area. He spent 25 years with Bay Area News Group (publisher of The Mercury News and East Bay Times) in various roles, including as a business/personal finance editor and an assigning editor on its Pulitzer Prize-winning coverage of the 2016 Ghost Ship warehouse fire. Since 2018, he has worked as an independent writer and editor, contributing to the USC Annenberg Center for Health Journalism, the sports website and the nonprofit California news site CalMatters, among other outlets. Craig can be reached at


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