One of the most common questions I am asked as a workers’ compensation attorney is, “can my employer fire me for filing a workers’ compensation claim?” This is a good question and particularly during these tough economic times, a very legitimate concern. The short answer to that question is, no. However, it depends on the facts of the situation.
First and foremost, New Jersey is an at-will employment state, which essentially means an employee can be fired for any reason as long as it is not illegal. The Workers’ Compensation Statute NJSA 34:15-39.1 prohibits the termination of an employee in retaliation for filing a workers’ compensation claim or for testifying at a workers’ compensation hearing. If you feel that your termination was for one of these two reasons, you can file a discrimination complaint against your employer with the Division of Workers’ Compensation. You must file the complaint within 180 days of the date of the last act of alleged discrimination. The provisions of the law provide for restoration of your former position and payment of lost wages, however you must be able to perform the essential duties of that position to avail yourself of any remedy under this portion of the Statute.
If your employer’s actions are based upon your disabling condition rather than on your efforts to secure workers’ compensation benefits, you may have recourse to claim a violation of the Americans with Disabilities Act (ADA). Complaints of this nature may be filed by writing or calling the Equal Employment Opportunity Commission at 1801 L Street. NW., Washington, D.C. 20507, (202) 663-4900. The EEOC may also be reached from Mercer County and South by calling (215) 451-5800.
Generally employees who work under an employment contract can only be terminated for reasons specified in the contract. If you are a member of a union you should speak with your union representative if you feel that your termination was improper.
The most common scenario, is unfortunately, completely legal in the state of New Jersey. Employees can be fired for a legitimate business reason after the filing of a workers’ compensation claim, such as unsatisfactory job performance or excessive absenteeism. Many employers have a policy that an employee will be discharged if he or she is absent from work due to a medical condition for more than 90 days in a calendar year. Therefore, an employee who files a claim for workers’ compensation must do their best to pursue medical treatment and return to work as quickly as possible.