It is right to feel afraid to lose your job after injury. There are two primary reasons that you might lose your job after injury, one nefarious and one not:
- Your employer retaliates or discriminates against due to your injury and/or filing a workers’ comp claim (nefarious);
- Your injury is bad enough that you cannot perform your job (not nefarious).
You can get injured a variety of ways, at or outside of work. If you are injured at work, you likely have a workers’ compensation claim. If you get injured away from work, you won’t have a workers’ compensation claim but you may have a fault-based claim if someone caused your injury. Regardless, one of the major concerns for people is what happens if you lose your job after injury? I will break it down into 3 categories.
Disability Laws – Will You Lose Your Job After Injury?
Whether or not you have a workers’ compensation claim, Montana law has protections for disabled individuals. If you are disabled, the Montana Human Rights Act (HRA) and the Americans With Disabilities Act (ADA) likely apply. The HRA and the ADA are too complicated get into all details, but generally speaking an employer has a duty to make “reasonable accommodations” for a disabled individual.
What constitutes “reasonable accommodations” is often disputed and certainly undefined. Montana Code Annotated 49-2-101 states as follows:
Discrimination based on, because of, on the basis of, or on the grounds of physical or mental disability includes the failure to make reasonable accommodations that are required by an otherwise qualified person who has a physical or mental disability. An accommodation that would require an undue hardship or that would endanger the health or safety of any person is not a reasonable accommodation.
If you are injured and cannot perform your original job, under the HRA the employer cannot simply get rid of you without considering reasonable accommodations. However, if the employer can show that accommodation would cause “undue hardship,” the employer can let you go without consequence. It’s an easy out. In this lawyer’s experience, it’s fairly easy for an employer to make a colorable argument for undue hardship. For instance, if a framer has back surgery and can’t lift boards anymore, the employer may rightfully be able to argue that it can’t employ a construction worker who can’t perform construction tasks, and that there is no reasonable light duty work that would help the employer.
The HRA and ADA are not weapons, but they do provide a possible source of a legal remedy of lose your job after injury. An employer must consider possible reasonable accommodations before terminating employment. If they employer does not attempt or discuss reasonable accommodations, you can file a claim with the Montana Human Rights Bureau for your lost wages and other damages.
Work Comp – Will You Lose Your Job After Injury?
Work comp presents a different set of concerns based on the unique dynamic. If you have a workers’ compensation claim, that means you got hurt at your job. Employers often do not like workers’c comp claims because it can cost them money in insurance premiums. Maybe your employer blames you for the injury, which may or may not be fair. Regardless, there is a tense employer/employee relationship due to work comp claims and you should know your rights if things start to go south. There are a few different scenarios.
1 – You cannot perform your job due to permanent physical restrictions, your employer legitimately cannot accommodate you, and you lose your job after injury. You will lose your job in this scenario, but there are likely workers’ compensation benefits to replace some of your lost wages. You may be entitled to impairment benefits, partial disability benefits, or total disability benefits. Read our explanation of various available work comp benefits. Work comp benefits are complicated, and you should strongly consider contacting us to discuss your claim if you lose your job after injury.
2. You cannot perform your job due to permanent restrictions, you lose your job after injury, but your employer could have reasonable accommodated you. In this case, you likely have a claim with the Montana Human Rights Bureau as discussed above. Call us to discuss making a claim.
3. Your employer files you as retaliation for filing a work comp claim. This is a big no-no, but it happens often enough to point out. Employers don’t like work comp, and they take it out on the poor injured worker, who may have gotten hurt through no fault of their own. There is a specific law aimed at employers who fire employees as retaliation for a work comp claim, found at MCA 39-71-317. If you lose your job after injury because you employer retaliates against you for filing a work comp claim, call us to discuss a claim.
Why You Lose Your Job after Injury?
Sometimes it’s legitimate as discussed above. If you are injured badly, and cannot work, there is nothing that can necessarily save your job, although you may be entitled to significant work comp benefits or perhaps have a third-party claim. These are situations that happen, and we can take care of you at Duckworth Law and make sure you get the legal benefits you deserve.
A more difficult situation is when someone loses their job because the employer discriminates against them, or retaliates against them. Duckworth Law is well equipped to help you in this situation too, but the reality is that it’s not a good situation for the client in many cases. The cases involving the Human Rights Act, wrongful discharge, and/or retaliation are often drawn out, ugly, and costly. Damages are limited and you have a duty to mitigate. You should absolutely consider filing a case if you are discriminated or retaliated against, but it’s not a welcoming situation.
If you lose your job after injury, it might be unavoidable, but I see far too many avoidable situations. Employers simply don’t understand that the workers’ compensation system is as much about protecting employers, than it is about helping the employees. Part of the workers’ compensation system is that it is the exclusive remedy for an injury. That means if an employee is hurt at work, and the employer has work comp insurance, the employer is immune from liability (unless it’s intentional). Thus, even if the employer causes the injury, it can’t be sued. Employers receive huge benefit in the form of immunity due to work comp.
The problem is that employers don’t get it, and the work comp insurers often antagonize the situation. When you file a claim, the insurer and employer will be in relative constant contact and who knows what is said. Insurance adjusters often feed the employer information about your restrictions, questions about the injury, and speculate about your motivations. I have no doubt that these behind the scenes discussion help to fan the flames, and further antagonize the situation.
If you Lose Your Job After Injury
The bottom line – call Duckworth Law to discuss. Every situation is different, and we have seen most of them already. Let us help, whether it be with a workers’ comp claim, a third-party claim, or a discrimination/retaliation claim. We can help.