Is it legal to fire an employee who is on workers' comp, and unable to work due to injuries?

Most workers’ compensation statutes only prohibit the termination of an employee in retaliation for filing or attempting to file a workers' compensation claim or for testifying at a workers’ compensation hearing. A worker must be able to perform the main duties of their position for an employer to be obligated to provide work for them that falls within restrictions due to a work-related injury.

That said, if an employee can’t work at all and is still receiving workers’ compensation benefits, their employer will not be likely to fire them without knowing that they have reached what is called maximum medical improvement. If the employee has reached maximum medical improvement (or MMI) and cannot go back to previous duties, they might be subject to termination. However, if they can perform the essential duties of their job with accommodation, and the employer fires them because of a disabling condition, the employee may have recourse to claim a violation of the Americans with Disabilities Act (ADA).

When an employee is fired, workers’ compensation benefits should not be affected by termination. If a person is unable to do their previous job, they should be eligible to receive vocational benefits, including retraining for a different type of job. Workers’ comp benefits should continue until the employee is able to go back to work at a job with pay that is substantially similar to their previous wage.