Discipline and Discharge for Workplace Injuries and Accidents

Q: Can I be disciplined if I get hurt at work?
A: The best source of protection is the union collective bargaining agreement, as they all require that an employer have just cause for discipline. If you do something that would give your boss just cause to discipline you, you are appropriately subject to discipline. If you think your discipline is not for just cause, you should promptly file a grievance and follow the contractual procedures.

Q: What if I don’t work in an unionized workplace?
A: In a non-unionized workplace, the employer is generally free to discipline or discharge any employee for any reason. Thus, there is no need for a non-unionized employer to have just cause to discipline you, even if that discipline is irrational or otherwise unwise.

Q: Are there any Federal laws that apply in this area?
A: Yes. Section 11c of the Occupational Safety and Health Act, 29 U.S.C. § 660©, bars any form of discipline (discharge, suspension, written warning) for reporting a work-related injury or illness.

Q: How long do I have to file a charge under Section 11c?
A: 30 days from when you learn of the discipline and have a reasonable basis to believe it is due to your reporting the work-related injury or illness.

Q: How do I file a charge under Section 11c
A: A simple letter to the OSHA Regional Office covering the workplace is sufficient. The letter should set forth
a. the nature of the work-related injury or exposure
b. the date and location of the workplace injury or exposure
c. to whom, when and how the injury was reported
d. the nature of the discipline
e. why you think that reporting the accident precipitated the discipline

If you have any documents that evidence any of the above, you should consider enclosing a copy.

Q: What’s the process after I file a charge?
A: OSHA will assign an investigator to gather the facts. You should extend the investigator every cooperation. The investigator will contact the employer to get its side of the story. Once OSHA concludes that there has been retaliation, OSHA will provide an attorney via the Solicitor’s office to prosecute the case. Reinstatement with backpay is the standard remedy but there can be additional remedies like liquidated or punitive damages.

Q: Can OSHA move to block an employer’s policy that has the effect of penalizing employees for reporting work-related accidents or exposures?
A: Yes, provided that the Solicitor’s office agrees that there is such a policy. At a minimum, several, meritorious examples of Section 11c proscribed discipline from the same workplace need to be on file. All other proofs of such a policy should be submitted as well.

Q: Are there any State laws that apply in this area?
A: Yes. It is illegal to discipline you because you apply for workers’ compensation benefits. There is an administrative procedure within the Division of Workers’ Compensation that is commenced by filing this form. The advantages of utilizing this procedure is that you don’t need a lawyer. In addition, under the precedent-setting decision in Lally v. Copygraphics, 173 N.J.Super. 162, 413 A.2d 960 (App.Div.1980), aff’d 85 N.J. 668, 428 A.2d 1317 (1981)) held that it was a violation of state common law to discharge an employee for filing a workers’ compensation claim.

Q: If I work for a public employer who I believe has disciplined me for seeking worker’s compensation benefits, do I need to file a Tort Claims Notice?
A: No. See Brook v. April, 294 N.J. Super. 90 (App.Div. 1996).

Q: Does this doctrine apply to discipline for seeking medical treatment for work-related conditions?
A: Yes, at least to a limited to extent. Medical treatment for work-related injuries is a benefit required to be provided under the Workers’ Compensation law, and hence discipline for seeking such treatment is illegal. See Carter v. AFG Indus., 344 N.J. Super. 549, 782 A.2d 967 (App. Div. 2001) certif. denied, 171 N.J. 340 (2002).

Q: Can an employer lawfully discipline me for missing a medical appointment for a work-related conditon?
A: No, if the employer does not discipline employees who have non-work related medical conditions. Of course, very employers discipline employee who get hurt off the job for missing medical appointments.

Q: Can an employer lawfully discipline me because I am unable to work for a period due to a work-related condition?
A: Yes, assuming it disciplines all employees for missing the same specified amount of time. See Galante v. Sandoz, Inc., 192 N.J.Super. 403, 470 A.2d 45 (Law Div.1983), aff’d, 196 N.J.Super. 568, 483 A.2d 829 (App.Div.1984), appeal dismissed, 103 N.J. 492, 511 A.2d 665 (1986). If your employer and you are both covered by the Family and Medical Leave Act [link to FMLA PowerPoint], you will be protected for up to 12 weeks in a year.

Q: Does an employer have to give me a leave of absence to protect my job if I have a temporarily disabling work-related condition?
A: If you and your employer are covered by the Federal Family and Medical Leave Act, then you are entitled to have whatever portion of 12 weeks is left from your previous leave requests. Additionally, you may be entitled to a limited leave of absence under the New Jersey law Against Discrimination. However, there is no general requirement for an employer to hold your job open for you. See Malone v. Aramark Services, Inc., 334 N.J. Super. 669 (Law Div. 2000).

Q: Doesn’t my employer have to accommodate me under the Law Against Discrimination by giving me time off when I need it for my disability?
A: Not really. Uniformly enforced attendance requirements supersede any
accommodation requirement as showing up to work is almost always an essential element of the job. Hence, not being able to maintain attendance is considered an inability to perform the essential elements of the position.

Q: Can an employer lay me off or abolish my job while I am temporarily disabled on worker’s compensation?
A: Yes, provided this is done in a non-discriminatory manner.

David Tykulsker & Associates

The Law Office of David Tykulsker & Associates is located in Montcalir, NJ and serves clients in Essex County, New Jersey and New York states. Contact us for all matters concerning employee rights, labor law and workers compensation.
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