Absolutely! Nebraska is an at-will employment state. This means employers can dismiss employees for any reason at any time – with some significant exceptions. For example, employers cannot fire employees for filing a workers’ compensation claim.
Retaliatory discharge is against public policy, as decided by the Nebraska Supreme Court case Jackson v. Morris Communications Corp.
The employee, however, must prove the firing was the result of filing a workers’ compensation claim. Evidence may be found in:
- the timing of the firing – did it happen in the days or weeks following the injury?
- the attitude of employers toward the claim – did a supervisor try to persuade the employee not to make a claim, or make light of the injury?
- the reason given for the firing – did the employer suddenly claim poor work performance, when all prior performance reports for the employee were positive, or did they claim a need for layoffs when they recently hired more employees?
Your employer can fire you when you have an open workers’ compensation claim if the reason is legitimate.
For example, a legitimate reason would be companywide layoffs if the business is struggling. An employee with an open workers’ compensation claim could be included in that layoff.
Employers can also fire employees who are no longer able to do their jobs because of permanent disabilities resulting from the work injury.
For example, an employee’s job description requires occasional lifting of fifty pounds. Following a work injury and treatment, the physician assigns permanent lifting restrictions of twenty-five pounds. If the employer cannot find a position within the company to accommodate the employee’s twenty-five-pound lifting restriction, the employer could end employment.
So, your employer can fire you if you become permanently disabled because of your work injury?
The Nebraska Supreme Court explored this issue in a 2022 decision, Dutcher v. Nebraska Department of Correctional Services.
In this case, Suzette D. Dutcher permanently injured her knee during pressure point control tactics (PPCT) training in April 2015. The Department of Corrections required this training for all employees who had contact with inmates.
She received workers’ compensation benefits including medical and disability payments. At times she was able to work at her job with physical restrictions such as no bending her right knee. Whenever she interacted with inmates or conducted rounds, an employee with PPCT training had to be with her.
In September 2016, Dutcher received a letter from the Department stating that one year had passed since work restrictions had been imposed, and that she had 90 days to find a new position or be terminated. She was unable to find a position and the Department fired her in December 2016.
At the time of her termination, she was still treating for her injury. In March 2017 Dutcher’s doctor found she was at maximum medical improvement and assigned permanent work restrictions.
Dutcher then exercised her right to vocational services, and the Nebraska Workers’ Compensation Court approved her vocational plan to pursue an associate degree in business administration.
While attending classes, she filed a lawsuit against the Department of Corrections for violations of the Americans with Disabilities Act and the Nebraska Fair Employment Practice Act (NFEPA). A federal court dismissed the Americans with Disabilities Act case and sent the NFEPA to state court.
Dutcher argued she could perform all job duties except the PPCT take down techniques, which were not a regular part of her job duties. The Department disagreed.
In the end, it didn’t matter. The district court ruled that because the Nebraska Workers’ Compensation Act included an exclusivity provision, that Dutcher’s only recourse was with the Nebraska Workers’ Compensation Court. She could not bring added claims in other courts. The Supreme Court affirmed.
In most cases, workers’ compensation insurance will still pay benefits if you are fired with an open claim.
For example, an employee with permanent restrictions may be entitled to permanent disability benefits and vocational services. This would include retraining for jobs the employee can perform within the employee’s work restrictions. The employer pays for the training, as well as disability benefits for the duration of the retraining.
If your employer ends your employment while you have an open workers’ compensation claim, it is important to speak to an attorney who will make sure you receive all the benefits you deserve.
