NYS Workers Compensation and termination of job

Does not pertain to me - just a discussion. Can an employee who is out on a job related injury in NYS, collecting Workers Compensation, be terminated?

1 answer  |  asked Sep 14, 2004 5:19 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Out on a Job Related Injury

In answering this question, we need to consider two statutes, New York's Workers' Compensation Law, and the federal Family and Medical Leave Act ("FMLA").

If we were to look at only the Workers' Compensation Law, the answer would be, Yes, with an important exception. The Workers' Compensation Law does not protect an employee's job while the employee is out on a job related injury. However, the employee might have some protection if the employee is fired because of filing a Workers' Compensation claim.

It's a fine distinction. The fact of injury does not protect your job. The fact of making a claim does protect your job, but only t the degree that the motivation for firing you is your filing of the claim.

Now, all employers are covered by the Workers Compensation Law. Not all employers are covered by FMLA. Roughly speaking, your employer would be covered by FMLA only if there are a total of 75 employees somewhat close to the location where you work.

Not all employees are covered by FMLA. Under Workers' Compensation, you are covered if you are injured. It does not matter how long you have been working. Under FMLA, you have to have been employed for at least one year, and have put in at least a certain number of hours in a 12 month period (1,250 hours) to be covered.

Finally, not all injuries are covered by FMLA. Basically, an injury has to be somewhat on the serious side for FMLA to cover the injury.

So, unlike Workers' Compensation, which will cover any injured employee, FMLA is not always available. If it is available, it will protect an employee who is out because of a job related injury. However, it will protect that employee's job for only 12 weeks, unless the employer has certain policies that might have the effect of extending the coverage period.

posted by David M. Lira  |  Sep 16, 2004 08:11 AM [EST]

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