Workers’ Compensation and Retaliation Rights

Employees should understand the benefits and protections that may apply after a work-related injury or illness. New York workers’ compensation can provide medical treatment and partial wage-replacement benefits, while state law also prohibits certain discrimination connected to a workers’ compensation claim.

Workers’ compensation and retaliation involve separate legal requirements, forms, and deadlines. Understanding those differences can help an injured employee protect their rights.

Workers’ Compensation in New York

Workers’ compensation is a no-fault insurance system that provides benefits to eligible employees who experience injuries or illnesses arising out of and in the course of their employment. An employee generally does not need to prove that the employer caused the accident through negligence.

Depending on the claim, available benefits may include authorized medical treatment, partial wage replacement during qualifying periods of disability, payments for certain permanent impairments, vocational rehabilitation assistance, and death benefits for eligible surviving family members.

Who Is Eligible for Workers’ Compensation?

Most New York employees are covered, including many full-time, part-time, temporary, seasonal, casual, and day laborers. Virtually all employers in New York must maintain workers’ compensation coverage unless a specific exemption applies.

A worker’s classification does not depend solely on whether the employer calls the person an independent contractor or issues a Form 1099. The Workers’ Compensation Board may examine factors such as supervision, direction, control, the nature of the work, and whether the worker operates an independently established business.

Federal employees, certain railroad employees, maritime workers, and some other categories may be covered under different compensation systems. Questions about coverage should be evaluated according to the worker’s actual employment circumstances.

Reporting a Workplace Injury

An injured employee should notify the employer as soon as possible. New York generally requires the employee to provide notice within 30 days after an accident. Notice should preferably be made in writing and should identify when, where, and how the injury happened.

Failing to provide timely notice may jeopardize the right to benefits, although limited exceptions may apply. Occupational diseases and repetitive-stress conditions can involve different notice and timing questions, so employees should not delay in seeking guidance.

The employee should also tell each medical provider that the injury or illness is work-related. Medical documentation connecting the condition to the employment is often essential to the claim.

Filing Form C-3

Reporting an injury to an employer is not the same as filing a claim with the New York State Workers’ Compensation Board. An employee generally begins the Board claim by submitting an Employee Claim, Form C-3.

Form C-3 should be filed as soon as possible. It generally must be filed within two years after the accident. For an occupational disease, the deadline generally runs from when the employee knew or should have known that the condition was related to the employment.

An employer or insurance carrier’s knowledge of the accident should not be treated as a substitute for filing the employee’s own claim. Employees should retain copies and confirmation of everything submitted.

Employer Responsibilities

Employers subject to New York’s Workers’ Compensation Law generally must purchase workers’ compensation insurance or receive authorization to self-insure. Employers must also post the required notice identifying their insurance carrier and policy information.

After receiving notice of an injury or illness involving medical treatment beyond first aid or qualifying lost time, the employer has reporting responsibilities to its insurance carrier. The employee should still file Form C-3 directly with the Board rather than relying entirely on the employer.

Protection Against Workers’ Compensation Discrimination

New York Workers’ Compensation Law prohibits an employer from discharging or otherwise discriminating against an employee because the employee:

• Filed a workers’ compensation claim
• Attempted or planned to file a workers’ compensation claim
• Testified in a workers’ compensation proceeding
• Planned to testify in a workers’ compensation proceeding

Examples of potentially discriminatory conduct can include termination, demotion, discipline, reduced hours, or other adverse treatment motivated by the employee’s workers’ compensation activity.

An adverse employment action occurring after a workplace injury is not automatically unlawful. The employee must establish a connection between the action and the protected workers’ compensation activity.

Legitimate Employment Decisions

Workers’ compensation does not automatically require an employer to keep an injured employee’s position open indefinitely. The Workers’ Compensation Board explains that an employer may fill a position for legitimate business reasons when an employee cannot return to work.

An employer may also discipline or terminate an employee for a legitimate, nondiscriminatory reason, such as a consistently enforced attendance or conduct policy. The central issue in a workers’ compensation discrimination claim is whether the adverse action occurred because the employee claimed or attempted to claim benefits or participated in a workers’ compensation proceeding.

Other federal, state, or local laws—such as disability-discrimination or protected-leave laws—may provide separate rights. Those laws are administered through different processes and may have much shorter deadlines.

How to File a Workers’ Compensation Discrimination Claim

An employee who believes an employer retaliated or discriminated against them because of protected workers’ compensation activity may file a Discrimination Claim, Form DC-120, with the New York State Workers’ Compensation Board.

Form DC-120 generally must be filed within two years of the alleged discriminatory act. This filing is separate from Form C-3 and does not replace the underlying workers’ compensation claim.

Relevant evidence may include:

• Termination, disciplinary, or performance documents
• Emails, text messages, or statements discussing the claim
• A timeline of the injury, claim, and adverse employment action
• Attendance and employment records
• Names of witnesses
• Evidence showing how similarly situated employees were treated

Available Remedies

If the Workers’ Compensation Board finds that an employee was improperly terminated or otherwise discriminated against under the Workers’ Compensation Law, it may order restoration to the employee’s former position or privilege and direct the employer to pay compensation lost because of the discrimination.

Other remedies sometimes associated with employment lawsuits, such as emotional-distress damages or attorney fees, should not be assumed to be available in a Workers’ Compensation Board discrimination proceeding. Separate legal claims may provide different remedies, depending on the facts and the laws involved.

Retaliation Under Other Employment Laws

Reporting safety violations, refusing to participate in unlawful activity, requesting disability accommodation, taking protected leave, or asserting wage-and-hour rights may be protected under laws outside the workers’ compensation system.

Those claims may need to be filed with a different court or government agency and may have deadlines shorter than the two-year deadline for Form DC-120. An employee should promptly consult an attorney who handles the relevant type of employment claim.

How an Attorney Can Assist

A workers’ compensation attorney can help evaluate whether an injury or illness is covered, prepare the necessary claim forms, obtain relevant medical evidence, address disputes raised by the insurance carrier, and represent the employee at hearings before the Board.

An attorney can also evaluate whether adverse employment treatment may support a workers’ compensation discrimination claim and whether the employee should consult separate employment-law counsel about other possible claims.

How Cole, Sorrentino, Hurley, Hewner & Gambino, P.C. Can Help

At Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., our attorneys assist injured employees with New York workers’ compensation claims and related disputes.

If you were injured at work, developed an occupational illness, or believe you were treated adversely because you sought workers’ compensation benefits, contact our office to arrange a consultation. Acting promptly can help preserve important evidence and prevent filing deadlines from expiring.