So you were injured on the job and had to take a significant amount of time off. Now, to add insult to your already-existing injury, your employer is terminating you for excessive absences. This might seem unfair because the absences were the direct result of your workplace injury. Fair or not, in Ohio, workers' comp laws generally allow your employer to terminate you for not showing up to work due to a workplace injury.
In most cases, it’s legal for your employer to fire you while you’re on workers’ comp leave. Like many other states, Ohio does not provide job-protected leave for work injuries. If you’re unable to do your job, your employer doesn’t have to hold the job open for you or offer you a different job. There are a couple of limited exceptions, though.
In the state of Ohio, it is illegal for your employer to retaliate against you because you filed a workers’ compensation claim. For example, it would be illegal for your boss to fire you because he or she doesn’t like the fact that you're collecting workers’ compensation benefits. It can be tough to prove retaliation. However, if the reason for your termination seems made up, or you get fired shortly after filing your workers’ comp claim, you might have a case and should consult with a lawyer.
To assert a retaliation claim against your employer, you must take both of the following steps within a relatively tight timeframe:
If you don’t meet these two deadlines, your retaliation claim will be barred forever.
Employees with employment contracts are entitled to greater protections. The Ohio Supreme Court has held that contract employees may not be fired while they are still recovering from their injuries and receiving temporary total disability benefits. So if you’re a teacher, for example, you might have some recourse if you’re terminated for being absent after a work-place injury. However, a lot depends on the exact wording of your contract. If you think you might have a claim, you should talk to your union representative or an employment lawyer.
Although Ohio does not guarantee job protection during workers’ compensation leave, there are other ways you can take leave while still having a job to come back to. Many of these ways, however, have time limitations, so it’s a good idea to talk with an attorney at the beginning of your leave to make sure you’re not losing any rights.
If you think you could return to work with an accommodation, your employer might be required to discuss that option with you under the Americans with Disabilities Act (ADA). The ADA is a federal employment law that requires employers to provide reasonable accommodations to workers with disabilities. In order to qualify for ADA protections, your employer must have at least 15 employees and your work injury must be serious enough to qualify as a disability. (To learn more, see our overview article of the ADA.)
Ohio has a state law similar to the ADA that applies to employers with four or more employees. Because these are complex laws, you should consult a lawyer if you think you might have a claim.
You might be entitled to job-protected leave under the Family and Medical Leave Act (FMLA). The FMLA requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave for a serious health condition that prevents an employee from working. After the 12 weeks are up, your employer must return you to the same job, or one that’s very close to it. If your condition makes you unable to return to work after the 12 weeks, though, your employer is not required to reinstate you. You can take FMLA leave and workers’ compensation leave at the same time, but you must fill out the proper paperwork so your employer knows you plan to use both. (To learn more, including employee eligibility requirements, see our article on your right to FMLA leave.)