Will Your Job Be Safe After a Maritime Injury?
If you suffer a maritime injury at work on the water (including on a tugboat, barge, vessel, or oil rig), one of the questions you’ll probably have is, does my company have to keep me employed?
DOES YOUR COMPANY HAVE TO KEEP YOUR JOB AFTER AN INJURY?
The short answer is no, not indefinitely. Your maritime company is under no obligation to hold open your job until you recover from your injury. The only exception to this general rule falls under the Family Medical Leave Act.
LAWS THAT PROTECT YOUR JOB
The Family and Medical Leave Act (FMLA) requires your employer to hold your job open for up to 12 weeks. There are certain specifications, exceptions, and requirements that go along with FMLA eligibility.
The Family Medical Leave Act states:
“The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., entitles eligible employees of covered employers to take job-protected, unpaid leave, or to substitute appropriate accrued paid leave, for up to a total of 12 workweeks in a 12-month period…to care for the employee’s spouse, parent, son, or daughter with a serious health condition; when the employee is unable to work due to the employee’s own serious health condition…29 U.S.C. 2612…Once the leave period is concluded, the employer is required to restore the employee to the same or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” Read the full rules and regulations here.
Under the FMLA your employer has to give you up to 12 weeks off after an illness or injury. However, this law only applies to workers who have been with their company for at least 12 months, and your company does not have to pay you during this time off. After these 12 weeks, if you are not able to return to your old position, your company can let you go.
- Only lasts 12 weeks
- Must be employed for 12 months
- Employer must have 50 or more employees to be covered
RETURNING TO WORK AFTER A MARITIME INJURY
Trying to return to work after a maritime injury is complicated. The FMLA does protect you and holds your position open for 12 weeks. But what happens after 12 weeks? Should you insist that your company make a position available to you after you have recovered enough to come back to work? Before you request a full release from your doctor, read this article on returning to work, please!
After helping injured maritime workers for more than 23 years, here’s what I know: You have an injury at work. You’ve now received medical treatment, including possibly some testing that shows some sort of problem, or you may even have had a surgery or procedure done. Your company knows all this. You’re probably keeping them updated with medical reports or occasional communications. Their insurance representative may even be attending your medical appointment from time to time. They may be saying things like ‘we really need you back,’ or ‘we can’t hold your position open forever, you better hurry back.’ But do they really mean that? Will they really bring you back to your old job after your accident and injury? Probably not, and here’s why.
WHY YOUR COMPANY WON’T KEEP YOU AFTER AN INJURY
- After your injury and medical treatment, you’re a liability for them. You could get hurt worse on their vessel or rig and then they would be responsible for even more medical expenses and possibly wages to you.
- You could potentially hurt another employee. You could be involved in an accident where another employee is injured. Perhaps you and another worker are moving some equipment and he claims you didn’t carry your weight. Your past medical problems are now a huge issue for the company. That employee will certainly claim that your past injury made you dangerous to work with and caused his injury. And the fact that your company KNEW about your injury and had your past medical test results makes them even more at risk.
Staying with your own company after your injury is unusual. They can’t afford to stick their necks out for one employee when there are others available for the same position. Your belief that your company may treat you differently or ‘make an exception’ for you is generally unfounded. Keep in mind that the final decision on whether you get your old job back or not is usually made higher up, and by people who don’t have any emotional history with you. Once you have an injury and get any type of ongoing medical treatment, your company is going to view you as a very high risk.
Of course, they may suggest otherwise and even request you get a full release ‘so they can put you back to work’, but that’s usually a nasty trick to sabotage your potential case.
FINDING WORK ELSEWHERE
Despite these liabilities, it is still possible to find work at other companies where you disclose your medical treatment and they perform a full pre-employment check. Many of our clients have successfully returned to work with different marine companies after receiving their settlements. This is not unusual.
If you are unsure whether you qualify for benefits or protection under any of these acts, it would be in your best interest to contact a maritime attorney.
FREQUENTLY ASKED QUESTIONS
- Can my employer fire me after an injury at work?
- What’s the difference between maintenance/cure and worker’s compensation?
- Is there a ‘blacklist’?