Damned if you do, damned if you don’t. That’s the dilemma for many injured workers under doctor-given work restrictions.
Injured workers are damned by being subject to discipline if they refuse to work above their restrictions, but they can also be disciplined for doing work “above” their restrictions.
I thought about this topic after I read a blog post by Thomas Robinson involving a Tennessee worker who hurt himself lifting 29 pounds when his permanent restrictions were 25 pounds. Fortunately, the Tennessee Supreme Court stated that in that case that was not sufficient grounds to deny benefits.
But it “violating” work restrictions can be grounds for denying workers compensation benefits in Nebraska in certain circumstances. Primarily, if an injured worker misrepresents their old injury to a new employer.
In Nebraska, an employer can deny benefits if an employee misrepresents their work restrictions in an employment application and that misrepresentation leads to the work injury. I think this law has to be interpreted in combination with ADA and similar disability discrimination state laws. I think checking the box “yes” on employment application of whether you can do a job with or without reasonable accommodation shouldn’t be enough to sustain the misrepresentation defense. But not disclosing an old injury in a post-hire physical or health assessment is stronger evidence in my view.
Some of the more creative minds on the management side argue that concealing an old injury from an employer is willful negligence by an employee. Willful negligence is also grounds to deny workers’ compensation benefits. The Tennessee decision more or less rejected that argument and would be good persuasive authority on the issue.
Can an employer fire you “violating” work restrictions? It depends on the circumstances. If you’re on a 10 pound restriction and you get caught doing cross-fit, I would say yes. But a case where you lift 29 pounds with a 25 pound restriction is a closer call. It’s unlawful to fire some in Nebraska, and most other states, for filing a workers’ compensation claim. Firing someone for a petty and unintentional “violation” of work restrictions would seem suspect and could infer that the workers’ compensation claim was the reason they were fired.
I’m not putting quote marks arounds “violating work restrictions” just to be funny. Maybe I need to explain the joke. Anyone who knows anything about workers’ compensation and is being honest, knows that work restrictions are just an estimate. Even restrictions from a valid Functional Capacity Evaluation are more or less estimates of work abilities.
I think these are close cases. As a plaintiff’s lawyer, I would argue that someone who was fired not disclosing a work injury still has a retaliation claim. After all, but for the employee filing a workers’ compensation case, the employer would not have discovered the concealment and fired the employee. Maybe that seems like an overly technical argument, but does the argument at least shift the burden on to the employer to argue an equitable defense like laches or unclean hands? I don’t know the answer to that question, but if there is other evidence of retaliatory motive then concealing an old work injury may not be a lawful reason to terminate an employee.
However, as an employee you don’t want to take the risk. The ADA requires that employers attempt to work with you to accommodate a disability. If you are concerned about returning to work after an injury, don’t conceal old injuries if they could reasonably impact your ability to do your job. Often time there are simple fixes that allow you to complete your job duties. The Job Accommodation Network has suggestions about how to accommodate disabilities. Try to use those resources and/or work with your co-workers to try to accommodate your disability. Unions are also a great resource for accommodating an injury, use them when they are available.
Can you be fired while on light duty?
One can be fired while on light duty. Even while on light duty, a termination is legal if an employer can prove it was due to reasons such as poor performance, breaking work rules, or excessive absenteeism.
The law does not require that employers must offer light-duty work. And n some cases, and it is simply not practical.
Say a person whose work is to do data processing is so injured they can’t even type. Or a person who is required to carry a heavy load has a serious back injury. There may be no opportunity to have such people working in another department.
And, when employers do offer light-duty work, it’s expected that both parties would operate in good faith.
The employee can’t use the restrictions to shirk their duties or as an excuse to commit some infractions that affect productivity.
Of course, there could be cases where the employer is not acting in good faith, and perhaps the so-called light-duty work is too strenuous and difficult to carry out.
They may use this as an excuse to terminate the employment.
But in an at-will state, it would be difficult to prove that the employer is wrong because, in truth, they could terminate the employment for any reason!
The workers’ compensation system in Minnesota is set up to help Minnesota workers find new jobs if their old employers cannot accommodate them because of workplace injuries. You can request a rehabilitation consultation with a Qualified Rehabilitation Consultant. The QRC will determine if you can receive benefits such as job coaching, vocational testing, help with your job search, education, or retraining to help you get a new job.
Need help getting workers’ compensation for your injury? Joe Osterbauer, Esq. and the Osterbauer Law Firm stand up for injured Minnesota workers’ rights. Joe’s 27 years of workers’ compensation experience and his team’s speedy service combine to get clients the results they need. To schedule a free consultation, visit Osterbauer Law Firm online or call Joe’s office at (612) 334-3434.
Unfortunately, your employer can fire you in some limited situations if you have work restrictions. In general, employers cannot fire their employees just because they have disabilities (which may include work injuries). Employers also have a duty to attempt to accommodate employees who have disabilities. Sometimes, however, it is just not practical or feasible for an employer to make accommodations. Accommodations are changes to your job or duties made because of your disability.
The question of when an employer illegally fires you because of your work restrictions is difficult to answer. Determining what a reasonable accommodation is for your restrictions highly depends on your job duties, your exact restrictions, your workplace, your employer’s business, and other factors. For example, it may be reasonable for some employers to accommodate a lifting restriction because of your back injury, while in other workplaces you may not be able to do your job or any other job if you cannot lift.
If you have been fired because of your work restrictions (even if you suspect it but do not have proof), you need to speak to an employment lawyer. Talk to your workers’ compensation lawyer about how to find an employment lawyer near you. In addition, you may have a workers’ compensation claim against your employer if you can show that your employer retaliated against you for seeking benefits.
The New York State Worker Adjustment and Retraining Notification (WARN) Act requires covered businesses to give at least 90 days of notice to employees prior to a plant closing, mass layoff, or other covered reduction in work hours. If a business does not provide notice, it may be required to pay back wages and benefits to workers. For more information about the WARN Act, visit https://labor.ny.gov/workforcenypartners/warn/warnportal.shtm. If you believe your employer has terminated you in violation of the WARN Act, contact the Labor Bureau by completing a complaint form.
In many cases, yes. In New York State, a private-sector employer is not required to have good cause to discharge an employee. The employer can do so for reasons many people might consider unfair, such as to replace you with a member of the boss’s family, for fighting even if the other worker wasnt fired, because your boss didnt like you, or because your flight was cancelled and you had to extend your vacation. Public-sector employees (those who work for the government) and workers covered by a collective-bargaining agreement may have more legal protection.
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Can I Get Fired For Filing A Workers’ Compensation Case?
FAQ
What are work restrictions examples?
- Avoid lifting heavy objects. …
- Avoid physically demanding activities, including bending, lifting, squatting, carrying, pushing, or engaging in any other activities that may impede the workers’ recovery.
- Doing light-duty work. …
- Doing modified-duty work.
What you can’t be fired for?
Can I be fired for what I do outside of work?
What qualifies as wrongful termination in New York?