Thursday, November 14, 2013

Injured on the Job: Can You Be Replaced by a Seasonal Employee?

Seasonal Employee

Janet works as a server and an assistant chef at a catering company. During a big event, she slipped on the wet tile floor in the kitchen while carrying a tray of dishes. When she fell, she hit her head on the corner of the sink and was immediately sent to the Emergency Room where she was diagnosed with a concussion. The neurologist told Janet that she should take a week off from work and discuss having a lighter work load and shortened shifts with her employer. Her employer, understanding that her injury was work related, agreed to shorten her shifts and make her work load lighter when she returned after a week. Before Janet was scheduled to return back to work, her concussion symptoms worsened and the neurologist told her she should return to work at a later date. Worried about her job and a pile of bills, Janet filed for workers’ compensation to cover her lost wages; her boss told her that a newly hired seasonal employee could pick up her shifts.

Right before some big Thanksgiving events, Janet was given the “ok” to return back to work, but on limited hours. Although she was nervous about her recent injury, Janet thought she did well and kept up with the rush. Her co-workers were happy to see her return to work, but said wonderful things about the seasonal employee, Lisa. At the end of the night, Janet’s boss told her that he was worried that she wouldn’t be able to keep up with the rush of the upcoming holiday events and that he was going to put Lisa on as a full-time employee. He explained to Janet that he wasn’t terminating her position, but would put her as an “on call” until she fully recovered from her work related injury. Janet had a sinking suspicion that that was his nice way of telling her that she was done, as she had seen past employees put “on call” never to be called to work again. Feeling overwhelmed by the stress of upcoming holidays and feeling financially and emotionally distraught, Janet talked to a workers’ compensation attorney, as she wanted to know if her employer had made a “legal” decision. Her attorney told her that while she was technically not fired yet, she would need to wait to take action.

Within a week from the last day she worked, Janet received a last minute call from her boss to see if she could work a 12 hour day, following her doctor’s orders she had to decline and her boss promptly terminated her position.

Can You Be Fired if You Were Injured on the Job?

Janet had done everything right. As soon as she was injured, she reported the injury to her employer and went to the emergency room. She chose a doctor from the posted Panel of Physicians and kept in contact with her employer as soon as her diagnosis was given. After missing over a week of work (or 7 days), Janet filed for workers’ compensation benefits, as her employer did not offer any sick pay. When she was medically allowed to return to work, she did and she performed her tasks as expected. While Janet’s boss did not technically say that she was fired because of her injury, she was fired because she was not authorized by a medical professional to take a shift that was beyond her “prescribed” shift. With the help of her attorney, Janet can sue her employer for “retaliation”, when she filed for workers’ compensation.

Chances are that if you are injured on the job, you will not be replaced by a temporary or seasonal employee. Many employers are not willing to go through the legal battle of being sued by an injured-on-the-job employee; besides, many companies value their employees and are willing to work with them if an unfortunate injury occurs. If you have been injured at work, right before the holiday season, make sure to file for workers’ compensation benefits, as they are rightfully yours and can help you get through the holidays.


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