Our mission is to be trusted advisors and effective advocates for our clients.

Can someone with an open workers’ comp claim be fired?

You know work injuries happen, and you expect your employees to file a workers’ compensation claim when they get hurt on the job. However, some employees act like a workers’ comp claim is the equivalent to some kind of special immunity: They seem to think that you can’t fire them once they’ve filed their claim.

Is this true? Not at all. While you cannot fire an employee because they’ve filed a workers’ comp claim, you aren’t prohibited from firing them for other reasons. 

You should take steps to protect your company against retaliation claims

Since New York is an at-will employment state, you aren’t required to show “good cause” for the termination – but that doesn’t mean you shouldn’t take steps to protect your business against an allegation that you’re acting out of retaliation for their workers’ comp claim. 

That means keeping clear internal documentation about the reasons for your actions. Valid reasons to let someone go include:

  • Behavior problems: You may have suspicions that your “problem” employee’s workers’ compensation claim isn’t valid, but you need to focus on documenting their behavior before you terminate them. 
  • Work performance: If your employee has an active workers’ comp claim and they’ve been released to light-duty work or given restrictions, you have to make an honest effort to make reasonable accommodations to meet their disability. If you do and they still cannot handle the work, then you can let them go.
  • Downsizing: Economic issues know no season, and they certainly don’t care about a pending workers’ comp claim. If you have to downsize for financial reasons, just make sure the employee in question is fairly grouped in with the rest you have to let go.

Defending against workers’ compensation claims can get tricky, especially when you have to let the injured employee go. Make sure that you have experienced defense on board.


FindLaw Network
Super Lawyers | 2018
Martindale-Hubbell | Distinguished | Peer Rated For High Professional Achievement | 2018