Can you collect Workers’ Comp after being fired?

Posted on January 30, 2023

Yes, injured workers can generally continue to collect workers’ compensation benefits after being fired. Some states may have important limitations, however. The reason for the worker’s discharge may also be used to deny the workers’ comp claim. If the worker was fired because he or she filed for workers’ compensation, however, it may amount to unlawful retaliation.

If I was fired, can I still collect workers’ compensation benefits?

Injured workers can generally still collect workers’ compensation benefits if they get fired. Discharging a worker does not absolve the employer from paying workers’ comp benefits for:

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

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

Some states have additional limitations on this rule.

In California, for example, employers can deny a workers’ compensation claim if it was filed after the worker was fired. This is known as the “post-termination defense.” It exists to protect employers from facing false claims of a work-related injury by recently terminated employees.

Workers in California can still file post-termination claims and overcome the defense. They have to show any of the following:

• the employer knew about the workplace injury before the termination,
• the employee had medical records or medical bills that show that the job injury happened before the termination,
• the injury happened after the employer fires them, but before the worker’s last day, or
• the injury was due to cumulative trauma, and the employee did not know of the injury until after his or her termination.¹

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

Getting this compensation, though, still requires a workers’ comp claim. Putting one together is not always easy. An experienced workers’ compensation attorney from a reputable personal injury law firm can help.

Will my workers’ compensation claim be denied?

In some cases, the reason for the employee’s termination can lead to their workers’ comp claim being denied. This usually happens if the worker was violating their employment contract at the time of his or her injury.

Workers can get fired and see their termination lead to a denial if:

• they were under the influence of drugs or alcohol at the time of their injury,
• they were hurt while off the worksite when they were supposed to be working,
• the injury was due to prohibited activities that are not within the scope of employment, like playing a practical joke on a coworker, or
• the worker was hurt while committing a crime.

In these cases, the employee is fired for the wrongful conduct at work. The reasons for the termination can then lead to a denial of the 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 are prohibited from retaliating against a worker 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 is not limited to terminating the worker. The following courses of conduct also amount to retaliation:

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

If an employer retaliates against an injured employee for filing for workers’ comp, the worker can file a wrongful termination lawsuit. They can seek:

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

The workers’ compensation laws in some states even criminalize this kind of retaliation. In California, it is a misdemeanor.²

Employees who have been fired after filing for workers’ compensation for a workplace injury have legal rights. They should strongly consider establishing an attorney-client relationship with a workers’ compensation lawyer and getting their legal advice to invoke them.

Does the timing of my work injury matter?

The timing of the work injury matters for 2 reasons:

1. it can be prima facie evidence of wrongful termination in some states, and
2. if the injury happened after the worker was discharged, the claim can be denied.

Many states see the temporal proximity of a protected activity and an adverse employment action as a sign that it was retaliatory.

Protected activities under state labor laws generally include:

• whistleblowing,
• exercising a legal right or privilege, like taking medical leave, or
• reporting potential violations in the workplace, like discrimination or harassment.

One protected activity is filing a workers’ compensation claim. Workers have a legal right to file for workers’ comp.

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 the worker,
• demoting or disciplining the worker,
• reducing the worker’s pay, or
• changing the worker’s hours in a way that could be seen as punishment.

If the temporal proximity between the workers’ comp filing and the adverse employment action is small, some states see that as a sign that it was an act of retaliation.

For example: Bill gets hurt on the job on September 1 and files a workers’ compensation claim. On September 3, he is demoted for leaving his work vehicle unlocked – something that he does regularly.

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. The worker’s claim may get denied.

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