“But I was hurt on the job, I’m off on worker’s compensation and I’m under a doctor’s care; how could I have been fired?” I hear different forms of this from people all the time. There is a legend that you can’t legally be fired while off work under doctor’s care. Although there are some limited protections, you can be fired while off under doctor’s care and on worker’s compensation. In Texas, there is a law as in many states, that provides that an employer cannot discharge or discriminate against someone because the employee has been injured on the job and filed a worker’s compensation claim. The key to this is the motivation of the employer. If the employer is getting rid of the employee in retaliation for being hurt on the job and filing the claim, then this violates the Texas anti-retaliation statute found in the worker’s compensation act. However, if the employer can prove that it did not fire the employee because of the claim but on some non-discriminatory basis, the employer can escape liability. For example, if the employer has a nondiscriminatory absence control policy that terminates everyone automatically after they have been off a reasonable amount of time (usually 6 months or more), then the courts hold that this is ok. If the absence policy fires everyone no matter if they are off because of a disease, such a cancer, worker’s compensation injury, or some other non-work related injury or medical reason, then it is not discriminating against the injured worker because of the worker’s compensation claim but the policy requires the termination. Of course, other laws may come into play, such as the FMLA or ADA, and we will discuss those in future posts.
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