As this author has previously explained, most workers in New York State are eligible for temporary cash benefits, known as NYS short term disability benefits (“STD benefits”), when they are disabled by injury or sickness that is not work-related. See N.Y. Workers’ Comp. Law § 201(9)(A)(defining ” ‘Disability’ “). In particular, most employees in New York may receive up to 26 weeks (during 52 consecutive calendar weeks) of NYS short term disability benefits at fifty percent of the employee’s average weekly wage, but no more than the maximum benefit allowed. N.Y. Workers’ Comp. Law §§ 204, 205(1). Presently, the maximum benefit is $170 per week. Id. § 204(2).
This author has observed a common belief, among both management and workers, that a business in New York may not lawfully fire a worker who is out on NYS short term disability. This belief is only partially true.
An employer in New York may terminate an employee, even though the employee has claimed or attempted to claim short term disability benefits from that employer, for a legitimate reason independent of a retaliatory or other impermissible motive. See N.Y. Workers’ Comp. Law § 120.
By contrast, an employer in New York may not discharge or in any other manner discriminate against an employee as to his or her employment because the employee has claimed or attempted to claim short term disability benefits from that employer. N.Y. Workers’ Comp. Law § 120; Rodriguez v. C & S Wholesale Grocers, Inc., 108 A.D.3d 848, 850, 968 N.Y.S.2d 728 (3rd Dep’t 2013).
That an employer, in violation of section 120 of the New York Workers’ Compensation Law, discharges or in another manner discriminates against a worker because the worker has claimed or attempted to claim short term disability benefits does not enable the worker to sue the employer in court. Instead, the worker’s remedy for such unlawful discrimination is to file an administrative complaint against the employer with the New York State Workers’ Compensation Board. See Brook v. Overseas Media, Inc., 69 A.D.3d 444, 445, 893 N.Y.S.2d 37 (1st Dep’t 2010); Rice v. University of Rochester Med. Ctr., 46 A.D.3d 1421, 1423, 849 N.Y.S.2d 134 (4th Dep’t 2007); N.Y. Workers’ Comp. Law § 120.
If, after the worker’s filing of his or her administrative complaint, the Workers’ Compensation Board finds that the employer fired the worker because he or she was out on short term disability, the Board will reinstate the worker to the position he would have had but for the discrimination, will award the employee compensatory damages consisting of back pay, and will require the employer to pay the worker’s attorney’s fees as fixed by the Board. Further, the Board will fine the offending employer in an amount not less than $100 and not more than $500.