Can you collect Workers’ Comp in California after being fired?

Posted on July 28, 2023

You can generally still collect workers’ compensation benefits in California if you get fired. Discharging you does not absolve the employer from paying workers’ comp benefits for:

• lost wages,
• expenses related to medical treatment,
• temporary or permanent disability benefits, and/or
• vocational training.

These benefits will continue until you reach maximum medical improvement and the doctor clears you for work without restrictions. Once this happens, the workers’ compensation benefits stop. You will no longer be on workers’ comp.

What if I did not file for workers’ comp until after I got fired?

In California, employers can deny your workers’ compensation claim if you filed it after you were fired. This is known as the “post-termination defense.”

The post-termination defense exists to protect employers from facing false claims of a work-related injury by recently terminated employees. However, you can still file post-termination claims and overcome the defense by showing any of the following:

• the employer knew about your workplace injury before the termination,
• you had medical records or medical bills that show that your job injury happened before the termination,
• the injury happened after the employer fired you, but before your last day, or
• the injury was due to cumulative trauma (like a continuous movement work injury), and you did not know of the injury until after your termination.¹

There are also exceptions to California’s post-termination defense for psychiatric injuries.

Will my workers’ compensation claim be denied?

In some California cases, the reason for your termination can lead to your workers’ comp claim being denied. This usually happens if you were violating your employment contract at the time of your injury.

For example, you can get fired and see your termination lead to a denial if:

• you were under the influence of drugs or alcohol (“intoxicated”) at the time of your injury,
• you were hurt while off the worksite when you were supposed to be working,
• the injury was due to prohibited activities that are not within the scope of employment or proper protocols, like playing a practical joke on a coworker (“horseplay”), or
• you were hurt while committing a crime.²

In these cases, the employer fired you for wrongful conduct at work. The reasons for the termination can then lead to a denial of your worker’s claim for compensation. Workers’ compensation insurance companies frequently use this line of defense.

When is it retaliation for making a workers’ comp claim?

Employers may not retaliate against you for filing a workers’ compensation claim. If employers could retaliate against a worker for making a workers’ comp claim, or fire them for doing so, it would drastically undermine the workers’ compensation system.

Retaliation comprises not only terminating you. The following courses of conduct also amount to retaliation:

• reducing your pay,
• including you in a layoff,
• requiring you to use vacation time for medical appointments stemming from your workplace injury, or
• transferring you to a less desirable position.

If an employer retaliates against you for filing for workers’ comp, you can file a wrongful termination lawsuit. You can seek:

• increased workers’ compensation and medical benefits,
• back wages for your wage loss, and
• reinstatement to your old job.

In California, this kind of retaliation is a misdemeanor that employers can be criminally prosecuted for.³

Does the timing of my work injury matter?

The timing of your work injury matters for two reasons:

1. it can be evidence of wrongful termination, and
2. if your injury happened after you were discharged, your claim can be denied.

California law sees the temporal proximity of a protected activity and an adverse employment action as a sign that it was retaliatory. One protected activity is filing a workers’ compensation claim.⁴

If an adverse employment action follows a workers’ comp filing, it can be evidence that it was retaliatory. Examples of an adverse employment action include:

• firing you,
• demoting or disciplining you,
• reducing your pay, or
• changing your hours in a way that could be seen as punishment.

The timing of the injury also matters for the workers’ comp claim. Workers’ compensation only covers injuries that happen on the job. If the termination happened before the injury, it may not be covered, and your worker’s claim may get denied.

What can I do to protect myself?

If you sustain injuries on the job in California, notify your employer in writing right away (no later than 30 days after the accident).⁵ If you wait and/or make an oral report, it may be much harder to file a successful workers’ comp claim – especially if your boss terminates you in the interim.

Then compile all the available evidence documenting your accident and injury. Examples include:

• incident reports submitted to your manager, supervisor, human resources department, etc.
• your medical records
• witness statements from coworkers

If your employer fires you – and you believe it was because you reported an injury or filed for workers’ comp – you can file a complaint with the California Division of Workers’ Compensation (DWC) alleging that your employer is acting in bad faith. Though you should consult an attorney first.

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