Yes, you can lose your job while receiving Texas workers’ compensation benefits, but your employer cannot legally terminate or discriminate against you because you filed a workers’ compensation claim or engaged in certain other protected activities. Workers’ compensation benefits and job protection are separate issues.
Texas workers’ compensation can provide medical and income benefits after a compensable work injury, but the workers’ compensation system itself generally does not require an employer to hold your position open while you recover. Other laws, including the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), may provide separate protections depending on your employer, your condition, and your eligibility.
Texas generally follows the employment-at-will rule, which means an employer can terminate an employee for many lawful reasons. That rule does not permit termination for an unlawful reason, including prohibited workers’ compensation retaliation.
Does Workers’ Compensation Protect Your Job in Texas?
Workers’ compensation benefits do not, by themselves, guarantee that your job will remain available while you are unable to work. The Texas workers’ compensation system primarily addresses medical treatment and certain income losses caused by a compensable work injury.
That means an employee can continue to have an active workers’ compensation claim even if the employment relationship ends. Whether the termination itself was lawful is a separate question from whether the employee remains eligible for workers’ compensation benefits.
For example, an employer may have a legitimate reduction in force that affects an employee who happens to be receiving workers’ compensation benefits. The fact that the employee has an open claim does not automatically prevent the layoff. An employer cannot, however, use a layoff or another stated reason as a pretext for prohibited retaliation.
Can Your Employer Fire You for Filing a Workers’ Compensation Claim?
Texas Labor Code Section 451.001 prohibits an employer from discharging or otherwise discriminating against an employee because the employee filed a workers’ compensation claim in good faith, hired a lawyer to represent the employee in the claim, began a workers’ compensation proceeding in good faith, or testified or was about to testify in such a proceeding.
This protection is an exception to Texas’s general employment-at-will rule. A termination that occurs while an employee has a workers’ compensation claim is not automatically retaliatory, however. The issue is why the employer took the action. Texas courts have recognized that an employer may enforce a reasonable, uniformly applied attendance policy, while a termination caused by protected workers’ compensation activity can support a retaliation claim.
The Attendance Policy Defense
The most common defense employers raise in these cases involves their attendance rules.
Many employers have a written policy limiting how much work an employee can miss. Texas courts have held that firing someone under a policy like that is not retaliation, as long as two things are true: the policy is reasonable, and the employer applies it the same way to everyone. An employer that enforces its attendance rule against a worker with a comp claim while overlooking other employees who missed just as much work is not applying it uniformly.
One limit on this defense: if any of the missed work was FMLA-protected leave (explained below), the employer generally cannot count it against the employee under an attendance policy. A policy that looks uniform can still be unlawful if FMLA-covered absences went into the total.
This is why the details matter. How the employer treated other employees, and which absences the employer counted, can decide the case.
A Texas workers’ compensation retaliation claim under Section 451.001 generally must be filed within two years after the claim accrues. Different rules may apply to certain governmental employers, so the employer’s status can matter.
How Does FMLA Leave Affect a Workers’ Compensation Absence?
FMLA leave can protect the job of an eligible employee whose work injury also qualifies as a serious health condition. An eligible employee generally may take up to 12 workweeks of job-protected leave during a 12-month period for their own serious health condition.
Who Is Covered
Not every employee or employer is covered. To qualify, an employee generally must have worked for the employer for at least 12 months, have at least 1,250 hours of service during the preceding 12 months, and work at a location where the employer has at least 50 employees within 75 miles.
How FMLA and Workers’ Compensation Fit Together
Workers’ compensation and FMLA do different jobs, and neither one does both.
Workers’ compensation replaces part of an injured employee’s income and pays for medical treatment. It does not create a right to return to the job after an absence.
FMLA does the opposite. It pays nothing, but it protects the employee’s position and requires the employer to keep group health coverage in place on the same terms as if the employee had kept working.
When a work injury qualifies under both, the absence generally counts against FMLA leave at the same time. This is not usually the employee’s choice — the employer applies the FMLA designation. The combination is what gives an injured employee income from one system and job protection from the other.
There is a tradeoff. The 12 weeks of FMLA protection are used up while the employee is out on workers’ compensation. There is no additional 12 weeks of job protection after the comp absence ends.
What FMLA Job Protection Means
An employee returning from protected FMLA leave generally has a right to the same position, or an equivalent position with equivalent pay, benefits, and other employment terms. The guarantee is the same or an equivalent job, not the identical one.
An employer also cannot fire or punish an employee for lawfully requesting or using FMLA leave.
Returning to Work at Less Than Full Capacity
Protection is not limited to employees who can return to “full duty.” Many injured workers fall between “fully recovered” and “unable to work at all,” and FMLA has room for that middle ground.
An employee who can work but not full-time, or who needs time off for ongoing treatment, may take FMLA leave on a reduced schedule or in separate blocks when it is medically necessary. Recovery from a serious health condition by someone who cannot yet work full-time is one of the situations the regulations specifically contemplate. Only the time actually missed counts against the 12 weeks: an employee who misses 8 hours of a 40-hour week has used one-fifth of a week of leave, not a full week.
Light duty works differently. An employer cannot require an employee to accept a light duty job in place of using FMLA leave. If the employer offers light duty through the workers’ compensation claim and the employee turns it down, the employee may lose workers’ compensation benefits — but FMLA leave continues, either until the employee can return to the same or an equivalent job or until the 12-week entitlement is exhausted.
When FMLA Leave Runs Out
If the employee cannot perform an essential function of the job when FMLA leave ends, FMLA does not require the employer to restore the employee to another position. That does not necessarily end the analysis: the ADA or another law may require the employer to consider reasonable accommodation.
Can Disability Laws Protect You After a Work Injury?
A work injury may also qualify as a disability under the ADA, depending on how the condition affects the employee. The ADA generally applies to employers with 15 or more employees and can require reasonable accommodation for a qualified employee with a disability unless the accommodation would impose an undue hardship.
A reasonable accommodation can include changes to job duties, workplace adjustments, a period of unpaid leave, or in some circumstances reassignment to a vacant position. An employer generally cannot require an employee with a disability to be “100% healed” or have no restrictions before returning if the employee can perform the essential functions of the job with reasonable accommodation.
For example, an employee released to return with a temporary lifting restriction may not necessarily have to remain off work until every restriction disappears. Depending on the job and the employee’s condition, the employer may need to consider whether an accommodation would allow the employee to still perform the job’s essential functions.
What Happens If You Are Laid Off While Receiving Workers’ Comp?
A layoff does not automatically end a Texas workers’ compensation claim. Medical benefits for a compensable injury and eligibility for income benefits are governed by workers’ compensation law rather than simply by whether the injured employee remains on the employer’s payroll.
Temporary Income Benefits (TIBs), for example, are available when a compensable injury causes an employee to lose some or all of their wages and the employee has not reached Maximum Medical Improvement (MMI), subject to the other statutory requirements. Texas Division of Workers’ Compensation (DWC) guidance recognizes that termination does not necessarily end disability. The relevant issue can be whether the compensable injury continues to cause the employee’s inability to earn the pre-injury wage after the employment ends.
The workers’ compensation carrier may dispute continued income benefits if it contends that the job separation, rather than the compensable injury, is responsible for the wage loss. That issue can depend on the work restrictions, the circumstances of the termination, available employment, and other evidence.
Can You Receive Unemployment After Losing Your Job While on Workers’ Comp?
Possibly. It is often assumed that a worker can never receive unemployment benefits while receiving workers’ compensation, but that is too broad. Texas unemployment eligibility depends on which workers’ compensation benefit the worker is receiving and whether the worker meets the unemployment program’s separate requirements.
To receive Texas unemployment benefits, a claimant generally must be medically able to work, available for suitable full-time work, and actively seeking work, in addition to satisfying wage and job-separation requirements. A person who is medically unable to perform any work would generally not satisfy the unemployment program’s able-and-available requirement. A worker who can perform other suitable work despite medical restrictions may present a different situation.
The type of workers’ compensation benefit matters. The Texas Workforce Commission (TWC), which administers unemployment benefits in Texas, states that a worker receiving Impairment Income Benefits may still be eligible for unemployment benefits. A worker receiving certain types of Temporary Income Benefits, Supplemental Income Benefits, or Lifetime Income Benefits cannot be paid unemployment benefits. An injured worker should report every workers’ compensation payment when applying and let TWC determine whether unemployment benefits are payable.
Do You Have a Right to Light Duty or Your Previous Job?
These are two different questions, and the workers’ compensation system answers both the same way: no.
Texas workers’ compensation law does not require your employer to hold your old job open. It also does not require your employer to create a light-duty position for you.
Why a light-duty offer still matters
Even though you cannot demand light duty, an offer of light duty can change the size of your benefit check.
When your doctor releases you to modified duty, the doctor lists your restrictions on DWC Form-073, the Work Status Report. Your employer can then offer you modified work. To count, the offer must be in writing and spell out where you would work, your schedule, your pay, and what the job requires physically, and it must come with a copy of your Work Status Report.
If the offer meets those requirements and your treating doctor does not dispute that it fits your restrictions, the insurance carrier may treat the offered wages as earnings you actually received — whether or not you take the job. Because earnings reduce Temporary Income Benefits, turning down a qualifying offer can lower your payments even though you were never required to accept the job.
What other laws may require
Workers’ compensation is not the only law in play. An employee returning from FMLA leave may have the right to be restored to the same or an equivalent job, and an employee whose injury qualifies as a disability may be entitled to consideration of reasonable accommodation under the ADA.
Neither is a right to a particular light-duty assignment. FMLA protects the job you left, not a modified version of it. The ADA requires the employer to consider accommodation, which is a process with its own eligibility rules and limits. Both depend on standards separate from your workers’ compensation claim.
What Should You Do If Your Job Is at Risk While You Are Out on Workers’ Comp?
Keep the workers’ compensation claim and the employment issue separate and document both. Practical steps can include:
- Keep copies of DWC forms, work-status reports, medical restrictions, benefit notices, FMLA notices, attendance records, emails, and termination or layoff documents.
- Ask your employer whether an absence is being designated as FMLA leave and review the dates and requirements in any FMLA notice.
- If your doctor releases you with restrictions, provide the appropriate work-status information and ask whether work consistent with those restrictions is available.
- If a medical condition may qualify as a disability and you need an adjustment to return to work, consider requesting reasonable accommodation.
- If you are terminated, keep records showing the reason the employer provided and the timing of the decision in relation to your workers’ compensation claim or other protected activity.
- Continue following workers’ compensation medical and claim requirements even if your employment ends.
A termination, layoff, or exhaustion of leave does not necessarily answer whether workers’ compensation benefits continue, whether the employer complied with FMLA or disability law, or whether retaliation occurred. Those are separate legal questions that may require different evidence and procedures.
Talk to Bailey & Galyen About a Texas Workers’ Compensation and Employment Issue
Losing a job while recovering from a workplace injury can create questions about medical treatment, wage benefits, FMLA leave, disability accommodations, unemployment, and retaliation at the same time. An attorney can review the reason for the employment action along with the status of the workers’ compensation claim and explain which protections may apply.
Call Bailey & Galyen today at 844-480-5373 for an initial consultation.
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