Fired for Getting Hurt? How to Handle Employer Retaliation
Fighting Retaliation After a Work Injury
When you suffer an injury in the workplace, you want to focus on getting the treatment you need to heal and return to work. Unfortunately, additional issues can arise if your employer fails to accommodate your work restrictions or even retaliates against you for having a work-related injury. Here are few things to know about when a worker’s compensation claim can give rise to an action against your employer for
termination or
retaliation.
Termination After a Work Injury
In general, Wisconsin is an “at will” employment state, meaning an employer can hire, fire, and make employment decisions for any reason, or for no reason at all. However, this does not mean an employer can use a basis prohibited by law to make those decisions.
Wisconsin Statute 102.35(3) provides that “any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee's physical and mental limitations” is liable for paying up to one year of lost wages to that employee. Note this provision requires the employer to have
suitable employment within a worker’s restrictions available to them.
For example, if all of an employer’s job positions require being able to lift over 50 pounds and you are under doctor’s restrictions to lift no more than 20 pounds, the employer can terminate your employment, assuming you have no job-protected leave available and there are no reasonable accommodations that would allow you to perform any of these positions.
However, if your restrictions are temporary and you subsequently become able to work in a position with your employer, you may be able to bring a
refusal to rehire claim if the employer subsequently refuses to rehire you for an open job position once you are healed.
Retaliation After a Work Injury
Retaliation after a work injury without an actual termination of employment is a trickier situation. What if you are not actually terminated from your employment but begin experiencing negative treatment after your injury? What if your employer refuses to accommodate your restrictions, even though they accommodate those of employees with non-work related conditions?
While Wisconsin law prohibits discrimination on the basis of a work injury, Wisconsin statute only provides a modest remedy for such workplace retaliation, to be paid to the state. Wis. Stat § 102.35(2). Additionally, federal law does not prohibit retaliation against an employee on the basis of experiencing a work-related injury or filing a worker’s compensation claim.
However, many situations involving worker’s compensation retaliation can also fall under the
Americans with Disabilities Act, which provides, among other things, that an employer must provide otherwise qualified employees (meaning those who can perform the "essential functions" of the position with or without reasonable accommodation) a “reasonable accommodation” for their disability and cannot discriminate against a disabled employee in the terms of their employment. If you request an accommodation from your employer, they must engage in an “interactive process” with you to try and accommodate you, unless doing so would lead to a “undue hardship.”
ADA actions relating to worker’s compensation can be difficult because you cannot argue both that your worker’s compensation claim has caused a permanent disability such that you are unable to perform your job duties and that you were qualified to perform your job with reasonable accommodations.* However, if you were only under temporary restrictions and would still have been able to perform your duties with a reasonable accommodation, an ADA action may be possible.
Additionally, if your employer’s discrimination against you is also based on another one of your identifies such as your race, gender, age, or religion, you may have another basis for a discrimination claim.
* See Peters v. Dielectric Corporation, Case No. 18-cv-811 (E.D. Wis. Oct. 17, 2019).
To Protect Possible Benefits, Do Not Resign or Refuse a Job Offer
If your employer begins treating you poorly after a work injury, you understandably may want to resign from your position and find a new job. However, this will end your entitlement to many of the benefits you could have received under worker’s compensation law, such as benefits for your time off of work or your future loss of earning capacity based on your injury. It is best to avoid resigning from your position, unless you have confirmed with an attorney that you have received all of the worker’s compensation benefits that you are entitled to.
Similarly, do not refuse a job offer from your employer, as this can also end your entitlement to benefits. Wisconsin Statute 102.43 (9)(a) provides that if an employer “makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal.”
Whether or not the refusal of a job offer is reasonable will depend on the specific facts of the case. For example, an employee’s refusal of a job offer has been found reasonable when the job offer required a lengthy commute. However, when the work offered is for a different time or shift, the employee must provide an adequate explanation for why the change would not be suitable, as personal preference to not work on a certain shift does not constitute a reasonable justification for refusing a job offer.
It is important to note that refusing a job offer, even with reasonable cause, may cause the carrier to end your wage loss benefits. The denial of the benefits would then need to be appealed and pursued by filing a hearing application with the Department of Workforce Development and you or your legal counsel would need to show why your refusal of the job offer was reasonable.
The statute also requires any job offer be “within the physical and mental limitations of the employee.” If your employer offers you a position outside of your work restrictions, advise your employer that you still wish to return to work with the employer, but cannot work in the position they offered due to the work restrictions assigned by your doctor.
The interaction of a worker’s compensation claim and a potential employment action can be complicated. Issues with your employment that arise from a work injury may be best handled separately from your worker’s compensation case, or they may be able to be resolved in the same proceeding. Our office has attorneys experienced in both
worker’s compensation and
employment and can help you determine the best way to resolve your situation.