Do I have the right to keep my job after a work injury?
You were injured at work. You filled your Workers’ Compensation claim and got your benefits. Now you are in the middle stage. Somewhere between recovering fully from your injury or illness, and returning back to work. The time in between however is unknown, and varies from case to case depending on the severity of the injury. I recently got asked asked a question relating to this, they asked if they could get fired or refused their old position after they had taken time off.
Back To WorkHere in California, there is no specific law that requires employers to save and reinstate the job to the injured employee. However, California’s anti-discrimination provision strongly states that it is against the law to fire an employee because of a work injury. (Section 132a of California Workers’ Compensation Code) To break this down for you, here in California, an employer is not obligated to reinstate an injured worker, but failing to do so without a clear and legitimate business reason, would then result in a discrimination claim against them.
An example of this discrimination would be if an employer does not rehire the [recovered] injured worker, offers no explanation as to why, then hires someone with fewer experience.
The only way an employer can refuse an employee after they got injured and recovered, is if the employer offers a legitimate explanation and shows that the employer will not perform well if he or she is reinstated. Another reason why your job may not be reinstated is if your recovery period is estimated by your treating doctor, and your employer states the period is to long, and will find a replacement for you in the meantime.
Accommodations Can Be Made
You work injury or illness can qualify as a disability under the Americans with Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA). If this is your situation, your employer is required to provide reasonable to help you perform your task. This also means your employer working with you to try and keep you employed, this includes doing things like changing your work duties, alleviating your workload, giving you additional time off, of providing special equipment to help you complete your tasks.
If your injury or illness causes you to take permanent partial disability, you can receive a Supplement Job Displacement Voucher (more on this on one of my previous blogs). This voucher can be used to get trained in another area of work, receive education, licensing, or certification for another job. This is only given to you if your employer does not reinstate you in your old job, or offers any alternative jobs for you.
Bottom LineAlthough there is no law exist in California to require your employer to reinstate you after your injury, there are very strong anti-discriminatory provisions that state you can not get fired because of your work injury. If your injury or illness is severe, you may be covered by the ADA or the FEHA, which state your employer must accommodate and work with you to make sure you stay employed.