It is unlawful for an employer to retaliate, discriminate and/or discharge an employee in response to the filing for or pursuit of workers’ compensation benefits. Shick v. Shirey, 522 Pa. 590, 716 A.2d 1231 (1998). In Shick, the Pennsylvania Supreme Court made clear that Pennsylvania Public Policy is violated where an employee is retaliated against in response to the exercise of legal rights under the Pennsylvania Workers’ Compensation Act. Although it is illegal it still happens. Just as their is a speed limit, many break the law and drive faster than the speed limit. Most employers are resistant to accommodating permanent restrictions. An injured employee who has returned to work in a modified or light duty capacity is usually on a course that results in a train wreck resulting in termination of the employment relationship. Where you are standing when the dust settles is largely dependent on the quality of the advice you get along your journey. We are fortunate in that our clients do listen to out advice and they are standing on top of the heap when the train wreck clears.
Pennsylvania is an at-will employment state, meaning that an Employer can generally terminate an Employee for any or no reason. There are some exceptions to this at-will status, including union contract provisions which require a specific basis for termination and/or a grievance procedure, and an Employer cannot fire you for a reason in violation of federal and state statutes which prohibit a termination from employment based upon age, gender, race, and certain qualifying disabilities. Your job may also be protected for a limited period of time under the Family Medical Leave Act, if you qualify. In 1998, the Pennsylvania Supreme Court in Shick v. Schirey did determine that an Employer who discharges an Employee for filing a claim for workers’ compensation can be sued for wrongful termination since discouraging Employees from asserting their legal rights under the Workers’ Compensation Act, is against public policy. However, it is not clear that the Schick Decision has significantly altered the behavior of Employers.
That being said, under the Workers’ Compensation Act, an Employee, who can establish that he or she was terminated for reasons related to his or her work injury, (which is called a bad faith termination) is still entitled to receive workers’ compensation wage loss benefits. It is important in circumstances where you are off work due to a work injury and have returned to work with restrictions, or have continued working, but in a light duty status, to “cross your t’s and dot your i’s”, as some Employers will look for a reason to terminate your employment in retaliation for pursuing a workers’ compensation claim. However, since a discharge from work, if determined to be motivated by bad faith, will result in liability for the Employer and/or workers’ compensation insurer, and therefore, there is a financial motivation for the Employer to maintain an employment relationship, rather than retaliate.
