Worker’s Compensation Discrimination Claims

Can I be fired for making a Worker’s Compensation Claim?

The short answer is no.  You can file a discrimination claim with the Worker’s Compensation Board.But there are practical problems making a claim against an employer who may fire an employee for filing a Worker’s Compensation Claim.

First, the burden of proof is on the employee (not the employer) to prove discrimination. (In Worker’s Compensation, the employer has the burden to show the employee is NOT covered by Worker’s Compensation.) This is a significant problem, because the employee would need to show some kind of evidence demonstrating discrimination.

Employers are not required to keep a position open for an employee who is out on a Worker’s Compensation Claim.  If you work for a larger business you are probably covered by FMLA which means that your employer cannot fire you for being absent due to a serious health condition which keeps you from working 12 weeks out of a 12 month period.

For cases not involving FMLA, if you are out more than six months, the employer does not have to keep your position open. The only exception would be if the employee is covered under a union contract which protects the employee’s job beyond six months.

All discrimination claims should be made within 2 years from the date of discrimination with the Worker’s Compensation Board.