Will I Get Fired If I Have A Work Injury? Can I Get Fired For Doing A Workers Comp Case?

What to Do Right Now If Your Employer Is Retaliating Against You

If you filed a workers comp claim and your employer is making your life miserable, you are not imagining things and you are not alone. Employer retaliation after a workers compensation filing is illegal in Illinois, and it happens far more often than most people realize. Here is what to do about it.

Document everything starting today. Open a note on your phone and create a running log. Every hostile comment from a supervisor. Every schedule change that conveniently makes your life harder. Every write-up for things that never mattered before you got hurt. Date, time, who said it, and who else was present. This log becomes critical evidence if you need to pursue a retaliatory discharge claim later.

Save every email, text, and voicemail. Do not delete anything. If your boss sends you a text saying the company needs people who can do the full job, screenshot it immediately and email it to your personal account. If HR writes you up and the write-up mentions your restrictions or your time off for medical appointments, get a copy and save it. The more paper trail you have, the harder it is for the employer to claim the termination was for legitimate reasons.

Get witnesses if you can. Coworkers who heard the comments or saw the treatment changing after you filed your claim can corroborate your story. I know this is tricky because those coworkers still work there and they are scared too. But if someone is willing to provide a statement, even a confidential one, it strengthens your case significantly.

Understand the difference between retaliatory discharge and workplace harassment. Retaliatory discharge is when they fire you because you filed a workers comp claim. The landmark Illinois case is Kelsay v. Motorola from 1978, where the Illinois Supreme Court recognized a tort cause of action for employees who are fired in retaliation for exercising their workers comp rights. If they fire you, you can sue for back pay, front pay, emotional distress, and potentially punitive damages.

Workplace harassment short of firing is harder to prove but it is still actionable in some circumstances. If the harassment is severe enough that a reasonable person would feel compelled to quit, that is constructive discharge, and it is treated the same as being fired. Cutting your hours, changing your shift, assigning you to impossible tasks, publicly humiliating you, all of these can add up to a constructive discharge claim.

File a complaint with IOSHA if the retaliation involves being forced to work beyond your medical restrictions. The Occupational Safety and Health Act protects workers from being required to perform tasks that put their health at risk. If your employer is ignoring your doctor's restrictions, that is not just a workers comp issue. It is a safety violation.

Do not quit. That is exactly what they want. If you quit, the employer will argue you left voluntarily and there was no retaliation. Stay, document, and call me at 312-500-4500. I will tell you what your options are and how to protect yourself.

Retaliatory Discharge

The question a lot of people have for me is, if I file workers comp can they fire me? Obviously that's a serious question. I understand why people would be worried about that. It is actually against federal law for a company to fire you for filing workers comp. They're not allowed to do that. It's called retaliatory discharge, and during the years, I've referred some people to attorneys who do retaliatory discharge and I've done a little bit of work on some of them as well.

If you've been fired because you filed a worker's comp claim, give me a call or talk to a lawyer because it's against the law. But here's the wrinkle and most workers' comp lawyers will not tell you this because they're afraid if they tell you this that you won't file a worker's comp claim and then they won't get a fee. But this is really the truth.

Employment Control

Who controls your employment file? Do you control it or does somebody in the HR department control it? When your boss is checking to see if everybody showed up on time, does your boss keep the paperwork or you do you keep the paperwork?

You can probably see where I'm going with this. The bottom line is, it is really true, Illinois is an at-will state, employment at-will, so they can fire you for any reason or no reason except for racism, retaliatory discharge or a couple of other things. But basically they can let you go. If you're late once they can fire you. The exception is, if you work at a union place the contract between the Union and the employer means that there's probably like steps they have to take before they can fire somebody.

Manipulation Of Records

If you don't work at a union shop, what I've seen in the past is they can create paper. I represented this guy one time who had I think it was like an ankle injury and it was a serious one. He needed a second surgery, he was out of work. And then they returned him to work light duty and after about a month they fired him so he called, me very upset and I talked to him. Then I called the insurance company and said "hey the employer fired this guy so what's going on?"

They investigated it. They called me back and said "well he's been late six times in the month that he's been working light duty" and so I called my client. He said, "no way, I'm never late, I get a ride with another guy and he wasn't written up for being late so how could I be late?"

Frequently Asked Questions:

Is it illegal to fire someone for filing a workers comp claim in Illinois?

Yes. Retaliatory discharge — firing, demoting, or otherwise punishing an employee for filing or pursuing a workers compensation claim — is illegal in Illinois. The Illinois Supreme Court has recognized retaliatory discharge as a tort, meaning you can sue your employer separately and recover damages including lost wages, future earnings, and emotional distress. Timing matters — being fired shortly after filing is strong circumstantial evidence.

What should I do if I think I'm being pushed out because of my work injury?

Document everything. Write down dates, times, and what was said whenever your supervisor or HR discusses your injury, work restrictions, or return to work. Keep all communications. Note any changes in how you are treated compared to before the injury. If you are given false reasons for discipline, document those too. Then call me immediately — 312-500-4500.

Can my employer force me to return to work before I am medically cleared?

No. Your employer can offer you light duty work within your medical restrictions, and if you refuse reasonable light duty, your TTD benefits may be affected. But they cannot force you back to your full job before your doctor releases you. If your employer is threatening your job if you don't come back before you're medically ready, call me. Your health and your legal rights are both at stake.

If I get fired while on workers comp, do I lose my case?

No. Your workers comp case continues regardless of whether you are employed. Getting fired does not end your right to medical benefits or your settlement. In fact, being fired may actually strengthen your wage loss and future earning capacity arguments. If you were fired in retaliation for the claim, you may have both the workers comp case and a separate civil retaliation claim. Call 312-500-4500.

What damages can I recover in an Illinois retaliatory discharge case?

Illinois allows full recovery in a retaliatory discharge case. That includes back pay (wages you lost from the date of firing), front pay (future wages you would have earned), emotional distress damages, and in cases where the employer's conduct was particularly bad, punitive damages. These damages are in addition to whatever you recover in your workers comp case. The Illinois Supreme Court in Kelsay v. Motorola made clear that employers who violate this law can face significant damages awards.

What evidence helps prove a retaliatory discharge case?

Timing is huge. If you were fired shortly after filing your workers comp claim, that timing alone is strong circumstantial evidence. Other strong evidence includes comments from supervisors or HR about your injury or restrictions; sudden write-ups for things that were never an issue before you got hurt; differential treatment compared to coworkers who didn't file claims; emails or texts referencing your claim; and witnesses willing to corroborate your story. The more documentation you have, the harder it is for the employer to claim the firing was for legitimate reasons. Start documenting today.

What is constructive discharge and when does it apply?

Constructive discharge is when an employer makes your working conditions so intolerable that you have no reasonable choice but to quit. Under Illinois law, constructive discharge is treated the same as an actual firing for purposes of a retaliatory discharge claim. Cutting your hours, changing your shift, assigning impossible tasks, public humiliation, or ignoring your medical restrictions can all amount to constructive discharge if they're severe enough. The key is whether a reasonable person in your position would feel forced to quit. Do not quit before talking to me - that's exactly what some employers want. Call me at 312-500-4500.

Can my employer punish me without firing me?

Yes, and it's still illegal. Illinois law protects you from retaliation in all forms - not just firing. If your employer demotes you, cuts your hours, changes your shift, gives you worse assignments, denies you promotions, or otherwise treats you worse because you filed a workers comp claim, that's actionable retaliation. The damages you can recover depend on the type and severity of the retaliation. Document every change in how you're treated after filing your claim, and call me at 312-500-4500 to talk about whether you have a claim.