Can You Be Fired While on Workers’ Comp?

Workers compensation law books concept

If you suffered a workplace injury, worker’s compensation benefits will cover your medical treatment, lost wages, and long-term disabilities or impairments. But while you’re collecting workers’ compensation benefits, you may wonder, “What happens if I get fired while on workers' comp?”

In Wisconsin, your employer cannot fire you for filing for workers’ compensation benefits. However, employers have significant discretion over personnel decisions, especially when it comes to accommodating permanent restrictions. If your employer unlawfully fires or refuses to rehire you because you filed a claim for workers’ compensation, your employer can be held liable for up to one year’s worth of back wages and benefits.

Wisconsin’s “Refusal to Rehire” Law Protects Employees Receiving Workers’ Compensation Benefits

In 1975, the Wisconsin legislature passed the “refusal to rehire law” which states that:

Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee’s physical and mental limitations, upon order of the department or the division, has exclusive liability to pay to the employee, in addition to other benefits, the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.

The law protects injured employees against unreasonable termination and unreasonable refusals to recall employees to work.

If you are fired for filing a workers’ compensation claim, you can file a hearing application for unlawful termination and your employer may be fined up to one year’s worth of your wages. Benefits for such a claim are only payable after you have reached end of healing from the work injury. Similarly, if your employer encouraged you not to file a claim for worker’s compensation benefits, your rights were violated and you may have a claim for bad faith against the employer.

There are limitations to your employment protections. Wisconsin is an “at-will employment” state, which means that your employer can end your employment at any time and for any reason, as long as the reason is not illegal. Your employer cannot fire you for filing a workers’ compensation claim, but they may let you go for some other reason, such as being unable to reasonably accommodate your restrictions.

Proving Unlawful Termination

If you were fired for filing a workers’ compensation claim, you can file a claim with the Wisconsin Division of Hearings and Appeals, Wisconsin Department of Administration. To prove your case for unlawful termination, you must show:

  1. You were employed by the employer from which you are seeking benefits;
  2. Your injury occurred in the scope of your employment; and
  3. After the injury, your employer refused to rehire you.

Once you have set forth your case under Wisconsin’s refusal to rehire law, the burden of proof shifts to your employer to try to establish that you were fired for a reason that did not violate the statute.

If the administrative law judge determines that your employer unreasonably refused to rehire you, the judge can assess a penalty of up to one year’s wages against your employer.

If you were terminated and earned money following an unreasonable termination, the penalty amount will be offset by your post-termination earnings.

Kingree Law Protects the Rights of Individuals Fired While on Workers' Comp

If you suffered a workplace accident or occupational injury, you are entitled to workers’ compensation benefits. These benefits are not a handout; they are part of an insurance program that provides benefits to people who suffer injuries or lost wages due to a workplace injury or illness. While you are recovering from your injuries, you should not need to worry about whether your job will still be there when you are ready to return to work.

At Kingree Law, Wisconsin workers’ compensation attorney Luke Kingree and his staff will evaluate your circumstances and fight for the benefits you deserve. To learn more, see our FAQ section and Information Center on workers’ compensation benefits. Then contact us today to schedule a free, confidential consultation to discuss your situation and how we can help. With offices in Madison and Eau Claire, Kingree Law proudly represents injured workers throughout Wisconsin.

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