Injured back at work, saw doctor, pulled out of work 5 days later, fired 2 weeks later for missing t

Is this retailiation for filing compensation? Terminated 2 weeks after doctor pulled me out of work. Was told if I would get released they would keep my job as it was. Finally won compensation case, refused at first, employer said injury didn't happen at work.

1 answer  |  asked Aug 12, 2005 8:18 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Terminations while on Workers' Compensation

There is a provision in the Workers' Compensation Law which prohibits an employer from taking an adverse action (including termination) against an employee because the employee files a Workers' Compensation claim.

When this law was first adopted, many Workers' Compensation judges took a position that a termination while on Workers' Commpensation created a rebuttal presumption that the employee was terminated because of filing a Workers' Compensation claim. However, New York's highest court, the Court of Appeals, in a case addressing this issue said the law should not create this presumption.

Because of this decision, an employee terminated while on Workers' Compensation has to prove that the reason for the termination was the filing of the claim, as opposed to something else. In essence, the employee has to climb into the employer's head. This is very difficult to do, and, as a result, employees very rarely win these types of cases.

So, the fact that someone is fired while on Workers' Compensation establishes nothing. In most cases, an employer can legitimately terminate an employee while that employee is on Workers' Compensation.

posted by David M. Lira  |  Aug 15, 2005 11:40 AM [EST]

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