Can You Be Fired While Receiving Workers' Compensation in New York?

You Can Be Fired While On Workers' Comp, But Not Because You Filed A Claim

Getting hurt on the job is stressful enough without wondering whether you'll still have a job when you're ready to return. Many injured workers hesitate to seek workers' compensation in New York because they're afraid their employer will find a reason to let them go.

The answer is more nuanced than a simple yes or no. New York workers' compensation law does not require an employer to keep every injured worker's position open indefinitely. An employer may still terminate someone for a legitimate reason unrelated to the workers' comp claim.

What an employer cannot do is fire, demote, or otherwise discriminate against a worker because that person claimed or attempted to claim benefits. Our New York workers' compensation lawyers at Pasternack Tilker Ziegler Walsh Stanton & Romano LLP help injured workers understand that distinction when a termination happens during an already difficult recovery.

Workers' Compensation Does Not Automatically Protect Your Position

New York generally follows at-will employment rules, meaning an employer may terminate an employee for many lawful reasons. Filing a workers' compensation claim does not make someone immune from an otherwise legitimate termination.

The New York Workers' Compensation Board specifically states that the Workers' Compensation Law does not require an employer to hold a job open simply because an employee is out of work due to an injury. A business may need to permanently fill the position, eliminate a job, conduct layoffs, or terminate someone for a legitimate performance or disciplinary issue unrelated to the claim.

That distinction can matter when a worker cannot return to the same job after an injury. Losing the position and being illegally retaliated against are not necessarily the same thing.

Section 120 Protects Workers Who Claim Or Attempt To Claim Benefits

New York Workers' Compensation Law Section 120 makes it unlawful for an employer to discharge or otherwise discriminate against an employee because the employee claimed or attempted to claim workers' compensation benefits.

The protection can begin even before a formal claim is filed. Section 120 also covers an employee who requests a claim form for an injury received in the course of employment, as well as someone who testifies or is about to testify in a workers' compensation proceeding.

That means an employer cannot legally tell a worker, in effect, "If you file this claim, you're fired," and then avoid Section 120 simply because the employee had not yet completed the paperwork.

Workers also do not need to miss weeks of work before these protections matter. Someone may have a valid workers' compensation claim without losing time from work and still be protected against retaliation for exercising those rights.

A Legitimate Termination Can Still Happen During A Claim

Consider two very different situations.

In the first, an employee has a documented history of attendance violations beginning months before a workplace injury. The employer follows the same progressive discipline policy it applies to other employees and eventually terminates the worker. The fact that a workers' comp claim is pending does not automatically make that termination illegal.

In the second, an employee has years of positive reviews, reports a workplace injury, and requests workers' compensation paperwork. Within days, the supervisor begins documenting vague performance problems for the first time and tells the worker that the claim is creating problems for the company. A termination shortly afterward raises very different questions.

The Workers' Compensation Board states that it will not find discrimination if the employer proves a legitimate, non-discriminatory reason for the action. That is why the evidence surrounding the termination matters more than the fact that the worker happened to be receiving benefits at the time.

Losing Your Job Does Not Automatically End Your Workers' Comp Case

Another common misunderstanding is that being fired automatically ends workers' compensation benefits.

Workers' compensation is tied to the work-related injury and resulting disability, not simply to whether the injured worker remains on the employer's payroll. Medical care for an established work injury can continue even after the employment relationship ends, unless those rights have been resolved through an applicable settlement.

Wage-replacement benefits can be more complicated. Whether checks continue may depend on the worker's medical disability, ability to work, earnings, and other requirements of the Workers' Compensation Board.

For example, a partially disabled worker who loses a job may need to demonstrate an appropriate connection to the labor market in certain circumstances. Someone medically able to perform another job may also need to consider how changing jobs while receiving workers' compensation could affect wage benefits.

Retaliation Can Take Forms Other Than Firing

Section 120 isn't limited to outright termination. The law prohibits an employer from discriminating against a worker in their employment because they exercised their workers' compensation rights.

Depending on the circumstances, warning signs may include:

• Sudden Discipline: A previously satisfactory employee begins receiving unexplained write-ups immediately after reporting an injury.
• Reduced Hours or Pay: An employer cuts a worker's schedule specifically because the employee filed a claim.
• Demotion: The employee is moved to a worse position due to the workers' compensation case.
• Pressure To Drop The Claim: A supervisor links continued employment, scheduling, or favorable treatment to withdrawing or not pursuing workers' compensation.
• Retaliatory Treatment During Light Duty: Modified work is used to punish or pressure an injured employee rather than accommodate legitimate medical restrictions.

Disputes involving light-duty work after an injury deserve particular attention because changes in duties, hours, and pay can have legitimate medical or business explanations. The surrounding facts usually determine whether the treatment was lawful or retaliatory.

Timing Can Be Evidence, But It Usually Is Not The Whole Case

An employer rarely writes an email saying that someone is being fired because they filed a workers' compensation claim.

Instead, retaliation cases often depend on circumstantial evidence. A termination one day after requesting workers' comp paperwork may raise suspicion, but timing alone does not necessarily prove why the employer acted.

Other evidence can make the picture clearer, including performance reviews from before the injury, attendance records, emails, text messages, disciplinary notices, statements from supervisors and evidence showing how coworkers were treated for similar conduct.

Consistent medical documentation can also help establish the timeline of the work injury, restrictions, and ability to return to work when an employer later disputes the rationale for an employment decision.

Other Laws May Provide Separate Job Protections

Workers' compensation is not the only law that may affect an injured employee's job rights.

An eligible worker may be entitled to job-protected leave under the federal Family and Medical Leave Act. The FMLA can provide up to 12 weeks of protected unpaid leave for qualifying medical conditions when the employee and employer meet the law's eligibility requirements.

Disability laws can also create separate obligations. Depending on the worker's condition and the employer, reasonable accommodations such as modified duties, scheduling changes, or medical leave may be required unless the accommodation would create an undue hardship.

These protections are separate from workers' compensation. A termination that does not violate Section 120 could still raise an issue under another employment law, depending on the facts.

A Section 120 Complaint Has A Two-Year Deadline

An injured worker who believes an employer retaliated against them can file a Discrimination Claim with the New York Workers' Compensation Board.

The Board uses Form DC-120 for these complaints. Under Section 120, the complaint must be filed within two years of the discriminatory act.

Waiting can still create practical problems even when the two-year deadline hasn't expired. Emails disappear, text messages are deleted, coworkers leave, and memories fade. Preserving evidence as soon as a termination or other suspicious employment action occurs can make a significant difference later.

The Board Can Order Reinstatement And Lost Compensation

If the Workers' Compensation Board finds that an employer violated Section 120, the available relief can be significant.

• Restoration To Employment: The Board can order the worker restored to the employment, position or privileges they would have had without the discrimination.
• Lost Compensation: The employer may be ordered to pay lost compensation resulting from the discriminatory action.
• Attorney or Representative Fees: The Board can award fees or allowances for services provided in the discrimination matter.
• Employer Penalty: Section 120 authorizes a penalty of $100 to $500 for a violation, payable to the state.

Those obligations fall on the employer itself rather than the workers' compensation insurance carrier.

Our New York Workers' Compensation Lawyers Can Help Protect Your Rights

Being fired while recovering from a workplace injury can create two problems at once: protecting your workers' compensation benefits and determining whether the employment decision itself crossed a legal line.

Our New York workers' compensation attorneys can review when the injury was reported, when the claim was filed, what the employer said, your employment history, and the documents surrounding the termination. We can also help protect the underlying workers' compensation benefits you may still be entitled to receive after the employment relationship changes.

If you believe you were fired, demoted, or otherwise punished for exercising your workers' compensation rights, contact us for a free case evaluation. We can review what happened and explain the options available under New York law.

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