When you are hurt at work, one big stressor is having to miss work because of your injury and worrying about whether or not your employer is going to terminate you if you or your attorney files because you have filed a workers’ compensation claim. As a worker, you have protections from this type of retaliation.

Pursuant to California law, employees can pursue a workers’ compensation claim for their work-related injuries whether or not the injury is the employer’s fault.  Workers’ Compensation is a no fault system.   Yet, some employers inadvertently believe that and employee filing a claim is accusing them of some wrongdoing.  Regardless, employers are prohibited by CA law and policy from discriminating against or retaliating against employees who are injured at the job.

Reasons Employers Cannot Retaliate

An employer cannot fire or threaten to fire an employee because the employee (1) reported a workers’ compensation claim, (2) filed an application to have the CA Division of Workers’ Compensation decide a claim, (3) states that they are intending on filing a workers’ compensation claim, (4) obtain a disability rating from a doctor, (5) settle a workers’ compensation claim with the employer, or (6) wins a workers’ compensation award in court.  Additionally, employers cannot fire or threaten to fire an employee who testifies on behalf of another employee in a workers’ compensation hearing.   It may even be deemed unlawful for an employer to fire an employee for missing work due to their work related injury.

Permitted Discriminatory Firing

If an employer refuses to reinstate an employee to the job they had before the injury, this could be seen as basically firing that employee. However, this is permitted in two circumstances: (1) when the employee has permanent disability that prevents them from doing their job with or without modifications and the employer has no alternative employment it can provide; or (2) when the employee’s position is no longer needed and has been eliminated.

Permanent Disability

Once an employee’s doctor finds an employee permanent and stationary, this means that now their condition is stable for the foreseeable future. At this stage, the employer can make the decision whether or not they can accommodate an injured employee by engaging in a formal investigation to determine: (1) whether the employee, with the disability, is able to perform the job they could before, (2) whether the employer can reasonably modify the employee’s job to accommodate their disability, or (3) whether there is an alternate position that the injured employee can perform (this must be lateral position with at least 85% of the pay). If the employer can say yes to any of the three, they are obligated to provide the injured employee with that job. However, if the employer can say no to all three, they can lawfully terminate the employee.

Employee’s Position Eliminated

An employer does not require employers to hold a position open if it is a job that the employer no longer requires. Whether the employee’s position was eliminated as a matter of necessity for the employer is something that can only be resolved on a case by case basis.

Remedy if Employee is Retaliated Against

If an employer is found to have retaliated against their employee regarding their workers’ compensation claim, they may be entitled to reinstatement if they were terminated and reimbursement for lost wages.  An employer that unlawfully retaliates may also be subject to a penalty up to a maximum of $10,000 and $250 in costs.  This may be difficult to prove and the assistance of an attorney may be required.

The law firm of Ghitterman, Ghitterman and Feld helps employees in the areas of workers’ compensation, social security disability, disability retirement, personal injury, labor and employment issues. Founded in 1956, the firm now has offices in Santa Barbara County, Ventura County, Kern County, Tulare County, and Fresno County. The firm is proud to continue this tradition of securing all available rights for the injured and disabled in our community. For more information about what we do, how we might be about to help, or resources, see our website at www.ghitterman.com.

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