In today’s job market, this is an important question that I am often asked by my clients. The Workers’ Compensation statute, N.J.S.A. 34:15-39.1, prohibits the termination of an employee in retaliation for filing a Workers’ Compensation claim, and prohibits termination of an employee who has testified in a Workers’ Compensation hearing. While these actions on the part of the employer are prohibited, unless you have protection through a union collective bargaining agreement, your job may not be secure while you are out of work receiving Workers’ Compensation benefits. Your employer can let you go if they need to replace you at the workplace with someone else who is physically able to do the job. This does NOT mean that the employer is off the hook for workers’ compensation benefits. They must still provide medical care, temporary disability benefits, and permanency benefits, as they would if you were still employed.
However you may be entitled to job protection while you are out of work for a work-related injury under the Federal Family and Medical Leave Act (FMLA). The FMLA allows employees of “covered” employers the right to take unpaid, but job-protected leave if they are out of work for a serious health condition that makes the employee unable to perform the essential functions of their job. The protection under the FMLA covers 12 weeks, in a 12 month period. Employers can require employees to use up their FMLA time at the same time while they are out of work receiving Workers’ Compensation benefits. The FMLA offers job protection only for the specified period of time. While New Jersey has a separate Family Medical Leave Act, it cannot be used by an employee who is injured or ill and cannot work. The New Jersey Act only applies to employees taking time off to care for other injured family members, and in certain other cases. It is the Federal FMLA that may provide job protection to New Jersey employees when they are injured and unable to work — since the New Jersey Workers’ Compensation statute does not adequately do so.
If you think that your employer is discriminating against you because of your disability, you may have additional rights under the Americans with Disabilities Act. Information on this Act can be obtained by contacting the Equal Employment Opportunity Commission for you region. Please contact Stark & Stark so that one of our experienced attorneys can answer your Workers’ Compensation questions.