Can my employer fire me after a workers comp injury?

Answer:  It depends.

It is not uncommon for the relationship between an employer and an injured employee to turn sour following a workplace injury or illness.  Surprisingly, there are only a handful of reasons why an employer is not allowed to terminate an employee following a work-related injury or illness. Most of these have to do with federal protections under Title 7 of the Civil Rights Act such as: race, color, religion, sex, or national origin. Some large companies are required to keep your job on hold following an injury or illness for a certain amount of time by the Americans with Disabilities Act of 1990. Further, Texas law prohibits an employer from retaliating in any way against an employee for pursuing his or her rights (such as seeking legal counsel or filing a workers’ compensation claim).

When an employer shouldn’t fire you

Employers are generally prohibited from discriminating (or retaliating) against an employee who has:

• made a claim for worker compensation in good faith
• consulted with or hired a lawyer to represent the employee in a claim
• filed a workers’ compensation claim against the employer’s insurance company, or
• has testified (or is planning to testify) in an administrative proceeding regarding a claim for workers’ compensation.

Aside from the prohibitions above, there is nothing in Texas law that forbids an employer from firing you following a workplace injury or illness, provided that your termination is not based on retaliation for talking to a lawyer, seeking medical care, or filing for benefits as provided by law. That means, however, that an employer otherwise has absolute freedom to terminate you for other, non-retaliatory reasons.

Texas courts have held that an employer has the right to terminate employment of any employee that is not physically capable of performing the normal job duties of the position for which the employee was hired. Not surprisingly, many employers (especially small and medium sized businesses) often terminate injured workers in order to find healthy replacement employees who are not limited by health issues.