Workers' Compensation: Do I Get Job-Protected Time Off?

Learn whether your employer can terminate you while you're receiving workers' comp benefits.

By , Attorney (University of San Francisco School of Law)

At some point after a workers' compensation injury, most employees will be able to return to work in some shape or form. But what if there's no job to return to? Can an employer fire you while you're out on workers' comp leave? Or refuse to take you back once you've recovered?

Most states do not require employers to hold jobs open for injured workers or even offer other available positions when they are cleared to return to work. However, a handful of states do provide employees with a right to reinstatement or rehire within a certain period of time. And, there are other laws that might provide an injured worker with job protection rights or additional financial support.

Majority of States Do Not Require Reinstatement

In all states, your employer cannot fire you because you injured yourself at work or because you filed a workers' compensation claim. That would be illegal retaliation, which is prohibited by workers' comp laws. However, in most states, the protection ends there. Employers are otherwise free to fire injured employees while they are out on workers' comp leave. For example, if your doctor has taken you off work and your employer needs to fill your position, it is typically free to do so.

However, it can be in an employer's best interest to hire an employee who is able and willing to return to work. It minimizes the employee's wage loss, which reduces the workers' comp benefits being paid out to the employee. In many states, the employee's benefits will stop or be reduced even if he or she refuses to take the job. (To learn more, see our articles on light-duty job offers and offers of suitable work after reaching maximum medical improvement.)

Some States Have a Right to Reinstatement or Rehire Preference

A handful of states have laws that offer job protection to injured workers. In some states, it is a right to reinstatement to their jobs within a certain period of time. For example, in Rhode Island, injured employees have the right to demand their previous jobs for up to one year from the date of injury. Employers with ten or more employees must return the employee to his or her previous position, even if it has been filled by someone else in the interim.

In other states, employers are prohibited from firing employees who are still healing from their work injuries. For example, in Oklahoma, workers who are receiving temporary total disability benefits may not be fired due to absence from work.

In other states, the injured employee gets a hiring preference only. For example, in Massachusetts, an injured employee who reapplies for employment must be given preference over other applicants who are not already employees of the employer. The preference only applies to suitable and available positions. (To learn more about these laws, see our article on the right to job protection in workers' comp.)

Federal Employment Laws That Provide Job Protection

Sometimes, a work injury causes a significant long-term impairment that qualifies as a disability under the Americans With Disabilities Act (ADA) or similar state laws. Under the ADA, employers with 15 or more employees must provide reasonable accommodations to workers with disabilities to allow them to do their jobs. Reasonable accommodation can take many forms, but it might include additional time off from work, providing workplace equipment, or moving you to another job for which you are qualified.

Similarly, the federal Family Medical Leave Act (FMLA) provides up to 12 weeks of job-protected leave for employees with a serious health condition. A serious health condition may or may not rise to the level of a disability under the ADA. The FMLA applies only to employers with 50 or more employees, but some states have similar laws that apply to smaller employers. At the end of the leave, the employee must be reinstated to his or her old job or an equivalent one. (Learn more in our article on FMLA reinstatement.)

Unemployment Benefits If You're Out of a Job

In some states, such as Rhode Island, employees can collect unemployment benefits if their employers refuse to hire them at the end of their workers' comp leave. You must be able and available to work and cannot have voluntarily resigned from your job. In many cases, though, you cannot receive workers' comp benefits and unemployment benefits at the same time (at least not in the full amounts). To learn more, see our state articles on collecting unemployment.

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