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Myrtle Beach, SC 29577
My employer and their workers’ compensation insurance company may not like it if I file a workers’ comp claim – but, can I be fired for filing a workers’ compensation claim in SC?
If you are hurt on the job and you don’t file a workers’ comp claim, you will lose your right to compensation for your injury – you cannot sue your employer and they have no other obligation to help you.
In exchange for taking away your right to sue your employer for injuries, the SC legislature requires that your employer provide workers’ compensation insurance for on-the-job injuries. Despite this, some employers may try to game the system at your expense by firing you when you have been hurt on the job.
If that happens, your employer has broken the law, you are still entitled to compensation, and you may have an additional claim against your employer for the wrongful termination…
If you are fired for filing a worker’s compensation claim in SC, you may have additional claims against your employer.
Most employers know this, and they want to take care of their employees. But, what happens if they don’t?
SC Code Section 41-1-80 prevents an employer from firing an employee because they have filed a workers’ compensation claim or because they testify in workers’ compensation proceedings:
No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the South Carolina Workers’ Compensation Law (Title 42 of the 1976 Code), or has testified or is about to testify in any such proceeding.
The law says that you cannot be fired for filing a workers’ compensation claim in SC, but what stops your employer from doing it anyway?
Section 41-1-80 also authorizes you to file a civil action against your employer if you are fired for filing a workers’ compensation claim in SC:
Any employer who violates any provision of this section is liable in a civil action for lost wages suffered by an employee as a result of the violation, and an employee discharged or demoted in violation of this section is entitled to be reinstated to his former position. The burden of proof is upon the employee.
Your employer can be forced to compensate you for the on-the-job injuries in the workers’ compensation claim, to give you the wages that you lost when you were fired, and to reinstate you to your former position that you held before they fired you.
This applies not only if you are fired for filing a workers’ compensation claim in SC, but also if you are demoted for filing a workers’ comp claim.
But, is your employer going to just fire you and admit it was because you filed a workers’ compensation claim? More likely, they will say that they fired you for an unrelated, valid reason…
Are employers forced to keep any employee who has filed a workers’ comp claim, then? What happens if the employee should be fired for misconduct or terrible performance?
Although any claim of misconduct justifying termination after an employee files a workers’ comp claim should be suspect, the legislature has not completely tied employers’ hands. Section 41-1-80 also lists specific offenses that would justify termination after you have filed a workers’ comp claim including:
These are “affirmative defenses” that your employer must plead in their response to your lawsuit. Although the burden of proof is on you to prove that you were fired for filing a workers’ compensation claim in SC, the burden of proof is on your employer to establish a “prima facie” case that the firing was justified by one of the causes listed above.
This means that in every case where an employer fires an employee for filing a workers’ compensation claim, the employer is also going to falsely claim the employee was actually fired for one of the legitimate reasons listed above…
If you are fired for filing a workers’ compensation claim, you should immediately inform your attorney. The statute of limitations to file the action is one year.
Obviously, if you are unable to work, your employer cannot continue to employ you. If you are 100% disabled, your workers’ compensation benefits are intended to provide you with continued income as well as your medical expenses.
But, at what level of disability can your employer terminate you?
SC Code Section 41-1-80 makes it clear that, if you receive compensation for total permanent disability, your employer is not obligated to continue to employ you:
The failure of an employer to continue to employ, either in employment or at the employee’s previous level of employment, an employee who receives compensation for total permanent disability, is in no manner to be considered a violation of this section.
Your employer must continue to employ you while your workers’ comp claim is pending until your doctor certifies that you have reached maximum medical improvement.
Once you have reached maximum medical improvement, your employer must allow you to continue to work if you are able and they must make reasonable accommodations to help you continue in your job – that could mean modifying your work schedule, your job duties, the equipment used on the job, or any reasonable changes that would allow you to continue to work.
If your employer has fired you for filing a workers’ compensation claim in SC, call your Myrtle Beach workers’ compensation attorney at Axelrod and Associates immediately for a free consultation to determine whether you have a lawsuit and what your next steps are.
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