One consequence of the COVID-19 pandemic is an increase of workers either retiring or quiting their jobs in the so-called “Great Resignation”. Observers of the workers’ compensation industry predict that this could lead to more work injuries.

I believe this is a reasonable prediction.

Studies show that new workers are three times more likely to be injured than experienced workers. Those same studies also show that only 1 in 5 new workers get proper safety training.  As workers move to new jobs post-pandemic, I think it is reasonable to assume an uptick in workplace injuries.

Work injuries often create serious problems for employees and those problems can be worse for new employees. A new employee doesn’t have job protected leave under the Family Medical Leave Act. There may be challenges in calculating benefit rates because of a lack of work history. In a denied or disputed claim, a new employee may not be able to fall back on other employee benefits like disability or private health insurance because they aren’t eligible for those benefits yet.

None of these concerns are new, but the post-pandemic “Great Resignation” could bring some new attention to these issues. Similarly, I think the “Great Resignation” highlights ongoing issues about the rights of injured workers to switch jobs and how it could effect their workers compensation benefits.

Why injured workers want to switch jobs

Clients or prospective clients often ask ,“If I quit my job, can I still get workers’ compensation benefits?” In short, the answer is “Yes, but….”. However before I answer that question, I’m interested in asking why an injured worker would ask that question.

I was often asked that question before the pandemic. In my experience, a lot of employers micro-manage medical care and return injured employees back to identical or similar jobs that they were doing when they got hurt. Particularly if the cause of the injury was overuse, these employees tend to either suffer ongoing pain, get hurt worse or suffer new injuries. So it would make sense that an injured employee would be looking to switch jobs.

The pandemic compounds employee dissatisfaction. Not only are many injured workers more or less working hurt, they are also being put at-risk or being exposed to COVID-19 at work. To add insult to injury and disease, employers can plausibly deny employees workers’ compensation benefits for COVID-19 exposure.

So in short, mangling workers and exposing them to a deadly virus at work doesn’t engender a lot of employee loyalty. It’s not surprising that injured workers would join the “Great Resignation.”

But workers still should be able to preserve workers’ compensation benefits if they switch employers.

The “portability” of workers’ compensation benefits i.e. why you keep comp benefits if you change employers

Workers compensation benefits are the original “portable benefits”. Unlike say, health insurance, workers compensation benefits follow employees. Many employees don’t understand this and think they can lose workers compensation benefits like they would lose health insurance if they quit their job.

Workers compensation benefits break down roughly into medical benefits and disability benefits. Both kinds of benefits follow the employee. Disability benefits break down into temporary and permanent disability benefits. Sometimes employers will deny temporary disability benefits if an employee is fired or quits their job on the theory that the employer could have accommodated an injured worker but for their termination or quit.

Courts determine whether temporary benefits are awarded to an injured worker on a case-by-case basis. Employees have been awarded temporary disability benefits while incarcerated. In Zweiner v. Becton-Dickinson East, the Nebraska Supreme court ruled that employee who moved to a new job then was unable to work because of an injury could receive temporary total disability benefits.

In Zweiner, the court found the employment at-will doctrine dictated that employees had a right to switch employers without fear of losing workers’ compensation benefits. I don’t like the employment at-will doctrine because I think it gives employers too much power to fire employees. But a fair-minded interpretation of the doctrine at least allows employees some ability to switch jobs in response to bad working conditions.

Employers will typically argue that a fire or a quit can rule out or reduce permanent disability benefits and vocational retraining benefits. Like disputed temporary disability benefits, awards of permanent and vocational rehabilitation benefits are determined on a case-by-case basis by courts in cases of an employee termination or quit.

Some types of permanent disability benefits are so-called “scheduled member benefits” which don’t require courts to determine how an injury has impacted an employee’s ability to work. While these benefits may be more limited and somewhat dependent on the whim of a doctor, they are paid regardless of employment status.