Many people believe a work injury claim is the same as a personal injury claim, but in fact, when you or a family member are injured or killed at work, there are many different laws that apply to such injury that would not apply to a personal injury case that occurred outside of the workplace.
When you are injured at work you may be covered by your company’s workers’ compensation insurance policy. Most states require employers to purchase workers’ compensation insurance (Texas being one of the exceptions). Workers’ compensation insurance provides a no-fault system of insurance – similar to health benefits policies – but in addition to paying medical expenses, these policies also cover some percentage of lost wages incurred by the employee as a result of their work injury. These policies, therefore, work as both a health insurance policy and a disability policy for injured employees. The trade-off of your employer carrying workers’ compensation insurance is that even if your employer was negligent in causing your workplace injury you are generally prohibited from suing your employer for their negligence in causing or contributing to your workplace injury. This is generally known as the “workers’ compensation bar” or the “exclusive remedy” provision. The plus side of the workers’ compensation insurance is that it provides basic coverage for injured employees regardless of who is at fault for the injury or death.
As Roger Davie, Attorney at Law, can explain, when you are injured at work you may be covered by the Family Medical Leave Act “FMLA”) or in some cases, a comparable State leave law. Under FMLA (if you are eligible) you can obtain up to 12 weeks of leave from work (this may be paid or unpaid depending on State law and your companies policies).
If you are terminated by your employer after a workplace injury, most state laws prohibit your employer from terminating or otherwise discriminating against you for filing a workers’ compensation claim. These laws are generally known as anti-retaliation laws.
If your workplace injury leaves you with any type of disability or if your employer perceives you as disabled as a result of your injury you may have a claim under the Americans with Disability Act (ADA) or a state equivalent provision. The ADA states that your employer cannot terminate your employment if you can still do the essential functions of your job with or without reasonable accommodation. For example, if you are released to return to work on “light duty” and you can still perform the essential functions of your job, then your employer may have a duty to take you back with those restrictions. In general, it is illegal for your employer to require a “full release” with “no restrictions” in order for you to return to work after an injury that falls under the purview of the ADA. The ADA also covers you if your employer begins to discriminate against you because they believe you are “injury-prone” or believe you will file another workers’ compensation claim based on your prior injury. This is known as “perceived disability” and often happens after a work injury where a worker is claiming a back or knee injury but is returned to work without restrictions.
Additionally, OSHA (Occupational Safety Health Act) has thousands of provisions that apply to employers and how they must deal with workplace injuries and job safety. Under OSHA, your employer is generally required to report serious injuries and deaths, and investigations by OSHA may be carried out. If you provide information to OSHA about your injury, then you may be protected from termination based on OSHA’s anti-retaliation provisions.
In many work-related injuries and death claims there may actually be a third-party (non-employer) that is responsible for the injury or death. If so, you or your family member will generally be able to sue the third party regardless of the “exclusive remedies” discussed above, however, the issues will be complicated by the possible negligence of your employer as well as the workers’ compensation insurance carriers’ right to be reimbursed for amounts they paid (this is generally known as subrogation rights). Third-party claims (including product liability) in work injury and death claims are complicated by many intersecting federal, state, and local laws and require the expertise of a work injury lawyer who has experience in all aspects of employment law – including issues with workers’ compensation insurance coverage, OSHA, and state/federal product liability laws.