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Posted by Sean A. Casey, Esq | Jan 13, 2023 | 0 Comments

              In the state of Pennsylvania, the employee's exclusive remedy against the employer for a work-related injury is workers' compensation benefits. There are wage loss, medical, and specific loss benefits available under this statute, but almost nothing that provides job protection. Many times, the client has a long work history and therefore a good salary in the position they occupied when injured. Employers tend to want to get rid of older injured employees because of their high salary and due to the stigma that an injured employee is more susceptible to injury in the future. Employees who want to maintain their jobs during a period of disability have to look to other statutes in order to secure their position.

               The Family and Medical Leave Act (FMLA) is the most obvious and immediate job protection for an injured employee. It provides up to twelve (12) weeks of medical leave and requires the employee to be placed back in their original position or an equivalent position. However, it only applies to employers with 50 or more employees in a 75 mile radius of the work site, the employee has to have been with the employer for a year, and worked 1,250 hours in that prior year. Asserting this job protection while off on workers' compensation benefits is important to ensuring a smooth return to employment.

               The Americans with Disabilities Act (ADA) has a broader range of benefits available to the injured worker and should always be considered as a part of any employee disability case. The ADA can provide extended job protection for a reasonable leave of absence past the 12 week FMLA period, and can provide job protection where the FMLA would not otherwise protect the employee's position. It requires employers to make reasonable accommodations that would allow an injured employee to resume employment, so long as they are able to perform all the essential functions of the job with that accommodation. The ADA covers private employers with 15 or more employees, as well as all public entities. It is very important that the employee make their employer aware of the disability and the need for accommodation as soon as possible. Failure to put the employer on notice can prevent the effective litigation of a claim under the ADA.

               The Pennsylvania Human Relations Act (PHRA) is a state statute that provides protections similar to that of the ADA. It can be asserted with the ADA, and it applies to smaller private companies in Pennsylvania with four (4) or more employees. It also has the benefit of not capping damages like the ADA does.

               Finally, unemployment compensation (UC) benefits can come into play for the injured worker. An injured employee can pursue both benefits, but should understand there is a dollar for dollar offset when both are ultimately granted. The most common scenario for applying for both benefits is when the employer has initially denied a workers' compensation claim and refuses to honor the light duty restriction of a medical provider. As long as the employee is able to perform some level of full-time employment, and holds themselves out as able and available, they are entitled to UC benefits. The UC process can be much faster than the workers compensation process, so it is a way to obtain financial compensation while the workers' compensation case is being litigated.

About the Author

Sean A. Casey, Esq

For the better part of the last 25 years, I have focused my practice on the representation of individuals and their employment situations. Whether it is a work injury, discrimination or wrongful termination, I enjoy helping people protect and enforce their rights. I am one of very few attorne...


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