By definition, anybody who’s receiving workers’ compensation is at a very vulnerable time in their life. Their injury or illness is keeping them from functioning properly, their experience may have been traumatic, and their loss of income could be causing financial grief.
On top of all that, many people worry about whether they’ll lose their job.
So, can you get fired while on worker’s compensation in Southeast Kansas? The short answer is: yes. But for better and worse, there’s a bit more to it than that.
What is workers’ compensation?
Before we discuss whether or not your job is protected while on worker’s comp, it’s important to define exactly what it is.
Workers’ compensation is a form of social insurance that replaces lost wages and covers medical expenses and rehabilitation costs for employees who are injured or become ill at work. In Kansas, wage replacement is based on 66.67% of your average weekly wage, up to a limit of 75% of the state’s average weekly wage.
Every business in Kansas with employees who aren’t owners are legally required to buy workers’ compensation coverage. Those who don’t risk severe consequences, including:
- Paying the claimant’s medical bills.
- Hefty fines.
- Possible imprisonment.
- Loss of the right to conduct business in Kansas.
How to file for workers’ compensation
When you’re injured or become ill at work, you must visit a healthcare professional immediately. If you plan to file for workers’ comp, they’ll provide the medical reports to support your claim.
You must provide notice of your accident to your employer within 20 days of its occurrence, including details on the time, place and specifics of the incident. Your employer will then file a report on your behalf. Once your claim is approved, you’ll begin to receive your compensation pay-outs.
Remember that you can’t receive the benefits of workers’ comp if your injury or illness is due to personal negligence while on the job. This includes situations in which:
- You fail to follow workplace policies and protocols for correct conduct.
- You become injured or ill while under the influence of drugs or alcohol.
- A third party is responsible for causing your injury or illness.
When can I get fired while on workers’ compensation?
Kansas is an “employment at will” state. That means your employer can fire you at any time without giving a reason.
However, there are circumstances in which firing an employee would be considered wrongful termination. These are:
- Breach of contract – If you’re employed under a valid employee agreement that specifies terms and conditions under which you can’t be fired, any attempt to do so would be illegal.
- Discrimination – You’re protected from being fired on the grounds of a protected characteristic, such as your disability, race, religion, sex, or gender reassignment. These rights are enforced across the state by the Kansas Act Against Discrimination, and nationally under Title VII of the Civil Rights Act of 1964.
- Retaliation – This involves an employer taking action against their employee for engaging in an activity that’s protected by law. Examples include reporting sexual harassment, whistleblowing, and filing a complaint.
Luckily for those on workers’ comp, filing a workers’ compensation claim is considered a protected action. Any attempts to fire a person for doing so would be considered retaliation, making it wrongful termination.
That said, there are still several instances in which your job isn’t protected while on workers’ comp. You can still be legitimately fired if:
- You’re fired for a reason other than your workers’ comp claim.
- You reach maximum medical improvement during recovery, but are still unable to return to work.
- Your employer can prove they were planning to fire you before your injury or illness occurred. However, in this case, you might still be eligible for some workers’ comp benefits while you remain injured.
So, unless your employer can prove they’re firing you for an unrelated reason, or you’re genuinely unfit to work, you’re legally protected from being fired while on workers’ comp.
Unfortunately, there’s one other circumstance in which you can lose your job while on workers’ comp: if your employer chooses to lie about the reason for your dismissal.
What if my employer lies about why they fired me?
Having an employee on workers’ compensation can be tough for any business. While you’re out of action, your employer loses a member of their workforce, and they might not be able to hire a replacement. To avoid dealing with these issues, a dishonest employer might invent another reason to fire you.
If this happens, the burden is on you to prove you’ve been wrongfully terminated on the grounds of retaliation for your workers’ compensation claim. You’ll be required to provide related evidence from before your dismissal showing that your employer has fired you under false pretenses. For example, if you’re fired on the grounds of poor performance, you could supply positive workplace performance reviews that demonstrate your abilities.
What happens if I get fired while on workers’ compensation?
Under the Retaliatory Employment Discrimination Act (REDA), if you’ve been wrongfully fired, demoted, or suspended while on worker’s compensation, you must send a written complaint to your state’s Commissioner of Labor. This must be done within 180 days of the alleged wrongful termination.
However, it’s almost certain that your employer won’t admit to firing you based on your workers’ compensation claim. A minimal investigation might take place, but the Kansas Department of Labor will be unlikely to prove your employer’s unlawful actions. In that case, they might send you a “right to sue” letter, giving you the power to take your employer to court for a jury to decide the outcome.
What can I do if I’m wrongfully terminated?
To prove that you were wrongfully terminated in a court of law, you’ll need an experienced and passionate trial lawyer to fight for you. At Phalen Law, we specialize in serving clients who have been injured at work and face denial of their rightful claims. If you are located in or near Pittsburg, Coffeyville, Kansas City, or Joplin, we can help you.
Don’t let a dishonest employer treat you unfairly and put you in a difficult position. Contact us today to arrange your free no-obligation consultation, and let our talented professional team analyze your case.
William L. Phalen
For 30 years, Bill Phalen has been representing families and workers whose lives have been devastated by workplace injuries, reckless drivers and the negligence of others. When tragedy needlessly strikes – because of the irresponsible behavior of an employer, corporation or an insurance company – Bill Phalen is an advocate for the people, always representing David in the fight against Goliath. Bill’s strong convictions have led to successful cases at the Court of Appeals and Kansas Supreme Court.
