Can You Be Fired While on Workers’ Comp in NY?

Yes, you can be fired while on workers’ comp in NY, but your employer cannot fire you because you filed a claim. Section 120 of the New York Workers’ Compensation Law prohibits retaliation against employees who pursue benefits for a workplace injury. Outside that protection, New York’s at-will employment rules still apply, and your employer can let you go for legitimate business reasons unrelated to your claim. The difference between a lawful termination and illegal retaliation is what determines whether you have a case worth pursuing.

What Section 120 Actually Protects

Section 120 makes it unlawful for an employer to fire, demote, or otherwise discriminate against you because you filed or tried to file a workers’ compensation claim, requested a claim form, or testified in a workers’ compensation proceeding.¹ The Workers’ Compensation Board states the same rule directly: your employer cannot discriminate against you for filing or planning to file a claim.²

The pivotal word in the statute is “because.” An employer who fires you the day after you file and offers no other credible explanation stands in a very different position than one who eliminates your department six months later. Proving retaliation means showing a connection between your claim and the action taken against you. Evidence that strengthens that connection includes a termination that closely follows your filing, sudden negative performance reviews with no prior history, a demotion, or comments from a supervisor about your injury or claim.

If the Workers’ Compensation Board finds your employer violated Section 120, it can order reinstatement to your former position, compensation for lost wages, and attorney fees. The employer also faces a civil penalty between $100 and $500.¹ The penalty range is modest; the real financial exposure for the employer is the back pay and reinstatement order, which can be far more significant depending on how long you were out of work.

Reasons an Employer Can Still Fire You

Being on workers’ comp does not make you unfireable. New York is an at-will state, meaning your employer can generally terminate you at any time, for any reason or no reason, as long as the reason is not illegal retaliation or discrimination.³ Legitimate reasons that have nothing to do with your claim include:

Layoffs or restructuring. If the company eliminates positions due to economic conditions or reorganization, you can be included even while collecting benefits.
Policy violations or misconduct. Breaking a clear company rule, such as a no-call no-show policy or workplace conduct standard, can justify termination regardless of your injury status.
Documented poor performance that predated your injury and was already being addressed through write-ups or reviews.
Inability to fill the role. New York’s Workers’ Compensation Law does not require your employer to hold your job open indefinitely. If your injury prevents you from returning and the employer needs to fill the position for business reasons, it can do so.⁴

Pay attention to the documentation your employer creates after you file. If performance problems suddenly appear only after your claim, that timing alone may support a retaliation argument.

Does FMLA Hold Your Job?

The federal Family and Medical Leave Act can provide up to 12 weeks of job-protected leave for a serious health condition, which can include a workplace injury. During that window, your employer must hold your job or place you in an equivalent position when you return, meaning the same pay, benefits, shift schedule, and duties.⁵

Not everyone qualifies. You must have worked for your employer for at least 12 months, logged at least 1,250 hours during the 12 months before leave began, and work at a location where the employer has at least 50 employees within 75 miles.⁶ If you work for a small company, FMLA probably does not cover you.

FMLA leave is unpaid, but it runs alongside your workers’ compensation benefits, so you receive wage replacement through workers’ comp while the FMLA clock protects your position. Once those 12 weeks expire, the FMLA shield disappears and your employer has more flexibility to fill the role. Section 120 protections against retaliation remain in effect regardless.

Disability Protections If Your Injury Qualifies

A workplace injury does not automatically qualify you for disability protections, but if your condition meets the legal definition of a disability, two additional laws come into play. The federal Americans with Disabilities Act requires covered employers to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an undue hardship on the business.⁷ Reasonable accommodations can include modifying your work schedule, restructuring job duties, providing assistive equipment, or reassigning you to a vacant position you can perform.

New York’s Human Rights Law goes further. It prohibits employment discrimination based on disability and applies to all employers in the state, with no minimum employee threshold.⁸ The state definition of disability is also broader than the federal one: it does not require the impairment to be “substantial” or affect a “major life activity” as the ADA does. If you have a physical or medical impairment demonstrable by accepted diagnostic techniques, you are likely covered under state law even where the ADA would not protect you.

Both laws require your employer to engage in an interactive process with you to identify possible accommodations. An employer who fires you without exploring whether accommodations could allow you to return to work may face a discrimination claim on top of any retaliation claim under Section 120. Policies that require you to be “100 percent healed” before returning to work have been struck down by courts as violations of these laws when applied to employees who could have performed the job with a reasonable accommodation.

Your Benefits Continue After Termination

Getting fired does not cut off your workers’ compensation benefits. Your right to those benefits is tied to the workplace injury itself, not your employment status. The insurance carrier that covered your employer at the time of injury remains responsible for paying them.

New York calculates wage replacement at two-thirds of your average weekly wages, subject to a cap that adjusts each year.⁹ Your benefit rate locks in based on the date of your injury and does not change even if the maximum is adjusted in later years. Medical treatment related to your injury should also continue to be covered. Notify the carrier of any change in your employment status to avoid gaps in your injury-related care.

How to File a Retaliation Complaint

If you believe you were fired because you filed or pursued a workers’ compensation claim, you can file a Discrimination Claim using Form DC-120 with the New York Workers’ Compensation Board. You have two years from the date the discrimination occurred to file.²

The form asks for your personal information, your employer’s information, and a description of what happened, including the date of termination and why you believe it was retaliatory. You can download the form from the Workers’ Compensation Board website and mail the completed form to the Board’s Disability and Discrimination Unit in Endicott, New York. Once your complaint is received, the Board notifies your employer and may schedule hearings to investigate the claim.

Two years sounds like a long window, but waiting weakens your case. The closer in time your complaint is to the retaliatory act, the stronger the connection looks. Keep copies of everything: your original claim paperwork, any correspondence with your employer about your injury or return to work, performance reviews, and any communications that suggest the real reason for your firing. If a supervisor made comments about your claim being a problem, write down what was said, when, and who else was present. That kind of detail matters more than most people realize when the Board evaluates the complaint.

1
New York State Senate. New York Workers Compensation Law 120 – Discrimination Against Employees
2
New York State Workers’ Compensation Board. Workers’ Compensation Discrimination Claim
3
New York State Department of Labor. Wages and Hours Frequently Asked Questions
4
New York Workers’ Compensation Board. Your Employer’s Rights and Responsibilities
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U.S. Department of Labor. FMLA Frequently Asked Questions
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U.S. Department of Labor. Fact Sheet #28 – The Family and Medical Leave Act
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Office of the Law Revision Counsel. 42 USC 12112 – Discrimination
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New York State Senate. New York Executive Law 296 – Unlawful Discriminatory Practices
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New York State Senate. New York Workers Compensation Law 15 – Schedule in Case of Disability