Can I be laid off while on workers' comp leave?

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Question:

I am suffering from a repetitive stress injury, similar to carpal tunnel syndrome, from computer use at work. While I was on workers' compensation leave, my employer informed me that I was going to be laid off as part of a reduction in workforce. Isn't this illegal? I thought my job was protected while my injury prevents me from working. 

Answer:

It all depends on one crucial word: "because." If your employer laid you off because you were on workers' compensation leave, that might indeed be a case of illegal retaliation. However, if your employer would have laid you off even if you were still on the job, the fact that you are on workers' comp leave doesn't protect you from layoffs. If that sounds like legal hairsplitting, read on.

All states have laws that prohibit employers from retaliating against employees who ask for and/or receive workers' compensation benefits. An employer cannot fire, demote, harass, lay off, or otherwise harm such employees because they are exercising their rights under the workers' comp system. An employee who has been the victim of unlawful retaliation can sue over this and win.

However, no law requires employers to give special treatment to employees just because they're on workers' comp leave. An employer can fire an employee for poor performance even if the employee has filed a workers' comp claim. And an employer can include an employee in a layoff if the employer had a reason for the selection unrelated to the employee's workers' comp claim and leave. 

If you believe you may have been targeted for the reduction in workforce specifically because you were on workers' comp leave, contact your state workers compensation board. Click here for a list of state workers' compensation offices.

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