Can I Be Fired While on Workers' Comp in Delaware?

Quick Answer

Delaware law generally prohibits an employer from discharging or discriminating against an employee solely because the employee filed or pursued a workers’ compensation claim. The protection comes from 19 Del. C. § 2365. However, Delaware is an at-will employment state, so employers can still terminate employees for legitimate, non-retaliatory reasons even while a claim is open.

Worrying about your job is one of the most stressful parts of a work injury. You’re hurt, you’re collecting two-thirds of your wages, and the last thing you need is to lose your position because you filed a claim. Delaware does provide anti-retaliation protections, but the rules are more nuanced than many people realize.

The Detailed Answer

Under 19 Del. C. § 2365, it is generally unlawful for an employer to discharge an employee from employment, or to discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment, because the employee has claimed or attempted to claim workers’ compensation. Violations can subject the employer to penalties and to a civil action by the employee.

What Counts as Retaliation

Retaliation can take many forms beyond outright termination. Examples that may trigger § 2365 include:

Firing an employee shortly after they report a work injury or file a claim petition
Demoting or cutting hours after a claim is filed
Refusing to reinstate a worker who has been medically released to return
Disciplining an employee for following doctor-ordered restrictions

What Is Not Protected

Delaware remains an at-will employment state. An employer can generally terminate an employee for legitimate, non-discriminatory reasons even while a workers’ comp claim is pending. Common examples include:

A documented company-wide layoff or reduction in force
Misconduct unrelated to the injury, supported by written records
Inability to perform essential job functions, even with reasonable accommodations, after the employee has reached maximum medical improvement
Job abandonment or failure to follow legitimate return-to-work procedures

Job Restoration Is Not Automatic

Importantly, Delaware’s Workers’ Compensation Act does not automatically guarantee that your old position will be held open while you recover. Other laws, such as the federal Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), may provide separate job-protection rights depending on the size of the employer and your medical situation.

What This Means for Your Case

If you were fired soon after reporting an injury, the timing alone is not enough to win a retaliation claim, but it is often a powerful piece of evidence. Courts and the Industrial Accident Board look at the full picture: when did the discipline begin, what changed after the claim, what does the employee’s prior performance record show, and what reason did the employer document at the time of termination?

Save every piece of paperwork, every text message, and every email related to your injury, your restrictions, and your communications with HR. Write down the date and content of every conversation. These contemporaneous records often make or break a retaliation case later.

How Retaliation Cases Are Proven

Proving retaliation under 19 Del. C. § 2365 typically requires showing a connection between the protected activity (filing or pursuing a workers’ comp claim) and the adverse employment action. Direct evidence of retaliation is rare; most cases rely on circumstantial evidence that, taken together, points to an unlawful motive.

Common categories of evidence include:

Close timing between the claim and the discipline or termination
Sudden change in performance reviews after years of positive evaluations
Inconsistent explanations from the employer about the reason for termination
Disparate treatment of similarly situated employees who did not file claims
Statements by supervisors about the cost of the claim or about the worker being a “liability”

Documents Worth Saving

If you suspect retaliation may be coming, start preserving documents now. Save copies of:

All performance reviews from your time with the company
The accident report and any incident documentation
Doctor’s notes, work restrictions, and return-to-work releases
Email or text communications with HR, supervisors, or the carrier
Any disciplinary write-ups, with attention to dates and signatures
Severance agreements or releases offered to you (do not sign without legal review)

If your employer offers severance, slow down. Many severance agreements include broad releases of claims, including potential retaliation claims under § 2365 and other laws. A Delaware attorney can review the agreement and help you understand what you would be giving up.

When to Talk to a Delaware Workers’ Comp Lawyer

If you suspect you were fired, demoted, or harassed because you filed a workers’ comp claim, consider speaking with a Delaware workers’ compensation attorney before signing any severance documents. Schuster Jachetti LLP has experience handling claims involving alleged retaliation. Learn more about Delaware workers’ compensation, appealing a denied claim, how long benefits last, or workers’ comp settlements.

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Reviewed by Joseph M. Jachetti Delaware Bar #003744 · Licensed December 1998 · Status: Active

This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.

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