I've suffered a Pennsylvania work injury and my employer is dirty. How can I fight back?

Greg Boles
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Partner at The Boles Firm | Experience Matters

Fighting Back

Documenting Employer Intimidation

There are far too many employers who discriminate against injured employees, which I discuss in my article, "The Seven Most Ugly Tactics Employers Use to Harass Injured Workers." Here I discuss the methods you can use to defend against these disgusting tactics.

If you are a member of a labor union, you must bring this conduct to the attention of your shop steward immediately. You may be required to pursue all remedies you have under your collective bargaining agreement and the failure to do so may result in the waiver of those rights.

For those not protected by a labor union, employees harassed because they have suffered a work injury should keep a careful record of harassment that occurs on the job. Keep a log in which you describe any incidence of harassment, the date and time of any incident, the persons involved, and any other information that may be relevant. You may also want to consider obtaining statements by any eyewitnesses Such statements should be in writing and signed by the eyewitness. It is also a good idea to clarify with the eyewitness if he or she is willing to testify on your behalf in the event that it is necessary.

While you’re done sitting on your butt, could you carry these cinder blocks to the roof?

If your supervisor asks you to do tasks beyond your physical capabilities, you must refuse and remind him that you are under strict orders not to violate your medical restrictions. Take careful note of all requests to perform tasks that are more difficult than those described in the notice you received about the light duty job.

Do Not Quit

Under no circumstances should you quit your job because you were being harassed by your employer. If you have not properly documented the activities of your employer, you may find that you are unable to collect workers compensation benefits after the date you quit because your employer will claim that you voluntarily ceased your employment for reasons unrelated to your work injury.

Seek an Experienced Attorney

For most people, it makes little sense to try to navigate this dangerous field without the assistance of a lawyer. Most good law firms will assist you in dealing with your employer at no charge.

The Family and Medical Leave Act

If you work for an employer covered by the Family and Medical Leave Act, you may be entitled to 12 weeks of unpaid leave in connection with your work injury. If your employer offers you light duty, you may have the right under the Family and Medical Leave Act to decline the light-duty work, but the failure to accept the offer may result in disqualification for workers compensation benefits.

Americans with Disabilities Act

Do You Qualify?

The Americans with Disabilities Act (ADA) outlaws discrimination against disabled people. Employers having “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year” are prohibited from discriminating against disabled employees. 42 U.S.C. §12111(5). To be considered disabled under the ADA, you must have a physical or mental impairment that "substantially limits one or more of the major life activities," have a record of such impairment, or be regarded as having such an impairment. Temporary or minimal impairments are not covered by the ADA.  In general, major life activities include such activities as caring for oneself, performing manual tasks, seeing, hearing, bending, thinking, and many other similar activities. Major life activities also include the operation of major bodily functions, including the immune, circulatory, and neurological systems. 29 C.F.R. §1630.2.

Illegal Activities and Requests for Accommodation

Individuals with qualifying disabilities may not be discriminated against in hiring, benefits, discharge, and other employment matters. 42 U.S.C. §12112(a). The disabled employee, however, must be able to perform the essential functions of the position with a reasonable accommodation. An employer must provide reasonable accommodations to the known limitations of an ADA qualifying employee. Examples of types of accommodations include accessibility ramps, modified equipment, job restructuring, and modified work schedules. 42 U.S.C. §12111(9); 269 C.F.R. §1630.2(o)(2). Because the Family and Medical Leave Act is limited to no more than 12 weeks of employment protection, an injured employee should make a request for an accommodation pursuant to the ADA as soon as possible.

Remedies Under the ADA

If you qualify for coverage under the ADA, you have the right to file complaint with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Rights Commission (PHRC), both of which have the authority to investigate claims of discrimination, including discrimination based on an individual’s claim of disability. Remedies for discriminatory conduct include reinstatement, promotion, back pay, compensatory damages, punitive damages, attorneys’ fees, and orders for the discriminating employer not to engage in such conduct in the future. 42 U.S.C. §§ 1981a and 2000e-5. Employers may not retaliate against employees for exercising his or her right to or participation in an ADA investigation. 29 C.F.R. §1630.12.

In summary, do not feel you are alone if you are being harassed on the job. Because employers hate to know their illegal behavior is being watched, a few well-written letters from a smart attorney may put an end to their behavior. Call us if you need help. There is no charge for this service.