MUST MY EMPLOYER KEEP MY JOB OPEN FOR ME?
One of the biggest concerns many injured workers have, when contemplating whether or not to file for workers' compensation benefits, is whether the job will still be there when they have recovered from their injuries. If they're off work for any significant period of time, the company may need to fill their spot. Can they reclaim that job when they are healthy again? For that matter, can their employer terminate them simply because they filed a workers' compensation claim?
New Jersey law is very clear that an employer may not fire a worker solely in retaliation for the filing of a workers' compensation claim. Unfortunately, that can be difficult (but not impossible) to prove. That's because New Jersey, like most states, considers employment to be "at will." That means that either party to an employment relationship may terminate the employment at any time, for any reason, as long as it's not contrary to written agreement, law or public policy. Though the workers' compensation specifically prohibit termination for filing a valid work comp claim, the employer may cite other, potentially permissible reasons. In most instances, the burden will be on the worker to provide sufficient evidence that the discharge was retaliatory.
Unfortunately, apart from the prohibition from firing you in retaliation for filing a workers' compensation claim, there's nothing in the workers' compensation laws that requires your employer to hold your job for you. There are, however, some other avenues you may pursue:
- Under the Family and Medical Leave Act (FMLA), you can protect your job for up to twelve weeks if you need to take time off for medical reasons. It is, however, unpaid leave, though you can used accrued sick time and vacation, if necessary.
- Your job may be protected by a union contract-if you are a member of a union and work in a union shop, check to find out.
CONTACT MALLON & TRANGER
We offer a free initial consultation to individuals in New Jersey who have suffered an injury on the job. To set up a meeting, contact us online or call us at 732-702-0333 (toll free) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.