Author Subject: Replaced!!1
Gail Posted At 21:00:16 07/18/2001
I have a question. I have been out on w/c for 4 months for bi lateral carpal tunnel and cerival strain. i have some nerve injury in my elbow and cervial spine. My employer has been hiring temps to do my job while I;m out but I just found out they hired someone to take my place. Can they fire me or get rid of me while I;m on comp??? The doctors haven;t released my yet to go back full duty. What are my rights? HELP
Watchdog Re: Replaced!!1 (Currently 0 replies)
Posted At 21:58:04 07/18/2001

Hi Gail

If your from Oregon then Yes your employer can fire you while your off on comp. I know, It happended to me while I was off work recovering from surgery.

Do what your doctor says and get better.
I can't speak for other state but most employees are "At Will" employees
meaning that you can quit a job anytime you want without a reason, employers can also do the same.

I wish I had something more positive to tell you.
Just get better and fight to keep your job.
thefer Re: Replaced!!1 (Currently 0 replies)
Posted At 23:09:01 07/18/2001


Sorry, i disagree. I am from Oregon. The employer does not have the right to fire you if you claim is open. They can replace you but once you return to work they have to find a job that meets certain requiements. If they do fire you. You have the right to sue. Read the laws and talk to workers comp board. If you claim is close, yes they can fire you. I can get you some links with info if you can send my your address. Thanks jenn.
Watchdog Re: Replaced!!1 (Currently 0 replies)
Posted At 00:17:36 07/19/2001

All I know is that a week after having a second surgery I received a call
from my at injury employer and was let go.
Bladeder Re: Replaced!!1 (Currently 0 replies)
Posted At 12:23:44 07/19/2001

There are also alot of employers who do not know the law as well.

Generally, you cannot be fired while on workers comp or any other type of medical disability. Your employer should treat you the same as they would treat any other employee in the company who has a bona fide medical disability. Example: if somone became pregnant, would they fire her? Not legally. They normally must hold your position open for a certain length of time -- in most cases, 6 months [minimum] to one year. If they don't have a 'policy' in writing as to hold long this would be, a court would base any judgment on 'precedent' [i.e., how long has the company held jobs open for other employees with medical disabilities in the past].

If you're still out after 6 months or after any specified time per your company policies, your employer can legally replace you, however, if you are able to return to work after you've been replaced, employers are required to place you in a similar position at a similar salary level -- providing one exists. If no such position is available, they aren't required to create one, and at that point you would be entitled to unemployment benefits due to the reason that you are wanting to work, but can't -- through no fault of your own.

The thing that makes this tricky is that the laws vary somewhat from state to state [I'm from California], but more specifically, size of employer is a major factor. The laws were written so small employers [less than 50 employees] would not be put in difficult situations trying to hold a job open -- which would be more difficult for a small employer, than a large employer where chances are the work can be absorbed by someone performing a similar task.

You should check with you local State Employment office for the specific details as they relate to your state.

When I worked in the HR department of a hospital here in California and an employee would go out on workers comp and receive temporary benefits, we would hold their job open for a year before they were officially replaced. If they were subsequently able to return to work, we would look through our openings for a similar position. If one was not available, we would tell them such, but also tell them to check back at regular intervals. This is the employee's responsibility -- not the employers. The law doesn't "make" employers remember that this person is "out there" and needs to be considered for every opening that comes available. Only after they are informed that the employee is able to return to work, does the employer need to do a pro-active search of its open posiitons for a suitable one. We basically had to keep these people in "limbo" from that point forward because they were no longer technically employees, but if they did inquire about an open position, they needed to be given "preference." The employer was under no obligation to train the former employee for a position they were not qualified for, however, all things being equal, the former injured employee would be the applicant we would be required to select at any point after they were authorized to return to work.

Sorry for writing a book here -- it's an extremely complicated and unclear area of the law. The main thing to consider is the size of the employer with regard to how long they must hold your position open.
EED Re: Replaced!!1 (Currently 0 replies)
Posted At 12:25:02 07/19/2001

Most Oregon Revised Statutes applying to workers' comp are in ORS Chapter 656 at

In this care the statute is in Chapter 659 at

You'll want to read others before and after 659.420. I also included 659.410 below (later empoyment) Although there are exceptions (see below), usually three years must pass while your claim is still open.

You want to call the Ombudsman for Injured Workers at 1-800-927-1271. They can assist you. I have heard many cases of employees being terminated just after filing a claim. This is illegal according to ORS's. There are a few exceptions though.

659.420 Employment of injured worker in other available and suitable work; termination of right to reemployment; certificate of physician; effect of collective bargaining agreement

659.420 Employment of injured worker in other available and suitable work; termination of right to reemployment; certificate of physician; effect of collective bargaining agreement. (1) A worker who has sustained a compensable injury and is disabled from performing the duties of the worker's former regular employment shall, upon demand, be reemployed by the worker's employer at employment which is available and suitable.

(2) A certificate of the worker's attending physician that the worker is able to perform described types of work shall be prima facie evidence of such ability.

(3) Notwithstanding subsection (1) of this section, the right to reemployment under this section terminates when whichever of the following events first occurs:

(a) The worker cannot return to reemployment at any position with the employer either by determination of the attending physician or upon appeal of that determination, by determination of a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656.

(b) The worker is eligible and participates in vocational assistance under ORS 656.340.

(c) The worker accepts suitable employment with another employer after becoming medically stationary.

(d) The worker refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary.

(e) Seven days elapse from the date that the worker is notified by the insurer or self-insured employer by certified mail that the worker's attending physician has released the worker for reemployment unless the worker requests reemployment within that time period.

(f) Three years elapse from the date of injury.

(4) Such right of reemployment shall be subject to the provisions for seniority rights and other employment restrictions contained in a valid collective bargaining agreement between the employer and a representative of the employer's employees.

(5) Any violation of this section is an unlawful employment practice. [1973 c.660 s.6; 1979 c.813 s.4; 1995 c.332 s.61]


659.410 Prohibition against discrimination against worker applying for workers' compensation benefits or use of laws relating to disability. It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or of ORS 659.400 to 659.460 or has given testimony under the provisions of such sections. [1973 c.660 s.4; 1989 c.1044 s.1; 1999 c.245 s.4]
Steve Re: Replaced!!1 (Currently 0 replies)
Posted At 16:13:50 07/19/2001

Yes, the employer can terminate you. He can't fire you because you filed a work comp claim, but he can replace you if he needs to do so in order to keep his business running. When you are able to return to work, the employer is obligated to re-employ you if there is a position available...and that doesn't mean firing someone so you can have their job. Think about it. A mom and pop restaurant has only one dishwasher. If he is injured and out for 3 months, the employer needs to hire someone to fill the position. Now when the injured worker is ready to return to work, should the employer fire the replacement worker? I'm not saying it's fair, it's just the way it is in Oregon.
thefer Re: Replaced!!1 (Currently 0 replies)
Posted At 16:57:37 07/19/2001


Last time i check terminate is the same as being fired. I am a bit confused. They can replace you by another employee, which has happened in my case. I am going on 9 months since i filed the claim. The minute i got restictions, my postion went down the toliet and i was in the limbo state and have been while going part time and now i am in even more limbo since being on medical leave for a workers comp surgery. I go back Aug 2nd and i may face that chance that they can't meet the accomindations so if that happens, i will still get TTD till i am released or they accept my restrictions.

It all may come down to how many employees are in the company. But i know that when you have a claim open, they have no right to fire or terminate. If this happens, get a lawyer. I am learning to get a lawyer either way. I had an incident where i would be screwed without one. And i asked if i didn't have one what would happen and i was told i would be screwed. But they can find someone to fill your position and you may lose the postition. If you get released to come back on restrictions why your claim is open. They have to meet them or ins company has to pay for your wages. Now once the claim is closed and tables turn. I am not looking forward to this and getting prepared for this now as i might be coming close in the next 4-6 months. But once the claim closes, if i get released with permaint restrictions. The employer can meet them or fire/terminate me. If i get fired, i may get help. But i am not sure about that till it comes closer. All i have been told is that since my claim was accepted that i will most likely get a disablity rating which in turn will help me out. But that is long down the road and waiting to become medically stationary first. Thanks.

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