Updated October 2026.
It is one of the first questions people ask after a serious work injury, usually right after “who pays my doctor?” If I am out on workers’ comp, does my employer have to keep my job for me? And if so, for how long?
The honest answer surprises most people. New York’s workers’ compensation law pays your medical bills and part of your wages, but it does not, by itself, require your employer to hold your job open. Job protection comes from other laws, each with its own rules and its own limits. And losing your job does not end your comp benefits. This post walks through both halves of that.
The short answer: how long your job is protected
| Source of protection | How long |
|---|---|
| New York workers’ comp law | No set time. It protects you from being fired for filing, not from being replaced while you are out. |
| FMLA (50+ employees) | Up to 12 weeks, usually running at the same time as your comp leave |
| Disability accommodation laws | A reasonable, definite extension of leave with an expected return date |
| Civil service employees (Civil Service Law § 71) | Generally at least one cumulative year |
| Union contract | Whatever your contract provides |
Workers’ comp pays benefits. It does not guarantee the job.
The workers’ compensation law does protect you in one important way: under Section 120, your employer cannot fire you, demote you or otherwise punish you because you filed a claim or testified in one. We cover that in detail on our page about being fired for filing a workers’ comp claim.
But Section 120 is about why you were let go, not how long you were out. It does not say your position has to stay open while you recover. Whether it does depends on who your employer is, how big it is, whether you belong to a union, and whether you ask for the right things in writing.
Where job protection actually comes from
The Family and Medical Leave Act (FMLA): up to 12 weeks
If your employer has 50 or more employees within 75 miles, and you have worked there at least 12 months and at least 1,250 hours in the past year, the federal FMLA generally gives you up to 12 weeks of unpaid, job-protected leave for a serious health condition. A work injury that keeps you out usually qualifies. Your group health insurance generally continues on the same terms while you are on FMLA leave.
Two things catch people off guard. First, employers usually run FMLA leave at the same time as your workers’ comp leave, so the 12 weeks are not added on top. Second, once those 12 weeks are used up, FMLA protection ends. If you are still out, the question becomes whether another law protects you.
More time off as a disability accommodation
A work injury that keeps you out of work is often a disability under the law. Federal law (the Americans with Disabilities Act, for employers with 15 or more employees), the New York State Human Rights Law (which covers employers of every size) and the New York City Human Rights Law (employers with 4 or more employees) all require employers to provide reasonable accommodations for a disability.
Additional leave can be one of those accommodations. Courts have held that a definite, limited extension of leave, with an expected return date from your doctor, may be required, while an open-ended request to hold a job “indefinitely” usually is not. The New York City law is the most protective of the three: the employer generally has to engage in a cooperative dialogue with you and must show real hardship before refusing an accommodation. New York courts have even faulted a public employer for firing a worker without considering a request for more leave made at the end of a year-long absence.
The practical point: if you need more time, ask for it in writing, attach a note from your doctor with an estimated return date, and keep a copy. Many accommodation claims are won or lost on whether that request was made.
Government employees: Civil Service Law Section 71
If you work for a New York State or local government agency under civil service rules, Civil Service Law Section 71 generally lets the employer separate you only after you have been out for at least one cumulative year because of a work injury. Section 71 also offers a way back: once you are fit to return, you can apply to be reinstated, within limits set by the law. City workers should read our page on workers’ comp for City of New York employees.
Your union contract
A collective bargaining agreement can give you more than the law requires: longer leave, seniority rules for returning, or a grievance process if you are let go. Ask your delegate for the leave and return-to-work sections of your contract. If your union also steered you to a lawyer, see the union sent me to a lawyer.
What does not protect your job
- New York Paid Family Leave. It covers caring for a family member, bonding with a new child and certain military needs. It does not cover your own injury or illness.
- Short-term disability (DB) benefits. They can pay you while a comp claim is disputed, but they are not job protection. See disability benefits while your comp claim is contested.
- The fact that the carrier is paying you. Receiving comp benefits does not, on its own, stop an employer from filling your position.
New York’s paid sick leave law does let you use your accrued sick days without being punished for it, but for most people that is a matter of days, not months.
If you are let go while you are out
Losing the job is hard, but it does not end your workers’ compensation claim. If you are still disabled because of the work injury, your weekly benefits and medical care continue. A few things do change:
- Your job search can matter. If your doctor says you can do some work, the carrier may argue you need to show you are looking for it. See labor market attachment and how to show it.
- Unemployment may be possible if you can work in some capacity. It interacts with comp in specific ways; see unemployment and workers’ comp.
- A new job that pays less may entitle you to reduced earnings benefits.
- If you were fired because you filed, you may have a Section 120 claim, which has a two-year deadline.
Be careful with severance papers. A severance agreement cannot settle your workers’ comp claim on its own, because that requires the Board’s approval. But it can waive other claims, such as discrimination or retaliation, in exchange for the payment. Get advice before you sign.
Fired while your doctor says you can’t work
If your treating doctor says you are totally disabled and you lose your job, your weekly checks should continue at the same rate. A worker who cannot work at all has no duty to look for work, so being let go does not by itself change your benefits.
That only holds as long as your total disability isn’t contested. The carrier can send you for an independent medical exam. If its doctor says you are only partially disabled, or able to return to work, the carrier will use that report to ask the Board to lower your rate. If the judge agrees you are partially disabled, losing your job starts to matter. The carrier will argue that you now have to show you are looking for work within your restrictions, and you may have to prove you were.
The judge decides between your doctor and the carrier’s doctor. The IME report does not win automatically, but you have to be ready for it. While you are out of work:
- Keep your treating doctor’s reports current. Every report should state your degree of disability. Once the job is gone, those reports are what keep your checks coming.
- Read every IME report the day it arrives. If it is wrong, it has to be challenged promptly. See independent medical exams.
- Keep job search records anyway, within your restrictions, if there is any chance you will be found partially disabled. Starting a search late is how people lose benefits. See how to show labor market attachment.
Light duty offers
Sometimes the question is not whether the job is being held, but whether the employer is offering a different one. If your employer offers work within your restrictions, how you respond can affect your benefits. Read our page on light duty offers before you say yes or no.
What to do now
- Put your expected return date in writing to your employer, and update it whenever your doctor changes it.
- Ask human resources whether your leave is being counted as FMLA leave, and when it ends.
- If you will need more time, request it in writing as a disability accommodation, with a doctor’s note and an estimated return date.
- Answer every letter from your employer. Many separations happen after an employee did not respond to a return-to-work or status request.
- Check your union contract if you have one.
- Call us before you resign, sign anything, or turn down a light duty offer.
If you are offered a Section 32 settlement that requires you to resign, see why the insurance company wants your resignation before you agree.
Frequently Asked Questions
How long does my employer have to hold my job while I’m on workers’ comp in New York?
New York’s workers’ comp law does not set any period. Your job may be protected for up to 12 weeks under the FMLA if your employer has 50 or more employees, for a reasonable, definite extension of leave as a disability accommodation, for at least one cumulative year if you are a civil service employee under Civil Service Law Section 71, or for longer if your union contract says so. Losing your job does not end your comp benefits.
Can my employer fire me while I’m on workers’ comp in New York?
In many cases, yes. New York’s workers’ compensation law does not require an employer to hold your job open. But your employer cannot fire you because you filed a claim, and other laws, including the FMLA, disability accommodation laws, Civil Service Law Section 71 for public employees and union contracts, may protect your job for a period of time.
Does FMLA leave run at the same time as workers’ comp?
Usually, yes. Employers commonly count time out on workers’ comp toward your 12 weeks of FMLA leave, so the two run together rather than one after the other. Once the 12 weeks are used, FMLA job protection ends.
How long can a New York government employee be out on workers’ comp before losing the job?
Under Civil Service Law Section 71, a civil service employee generally can be separated only after at least one cumulative year of absence due to a work injury, and can apply for reinstatement once fit to return, within limits set by the law. Union contracts may provide more.
If I’m fired while I’m out, do my workers’ comp benefits stop?
No. If you are still disabled because of the work injury, your weekly benefits and medical care continue. If you can do some work, your job search and other issues, such as labor market attachment, may come into play.
I was fired, but my doctor says I can’t work. Do my workers’ comp checks continue?
Yes, as long as you are still totally disabled. You do not have to look for work while you cannot work at all. But if the carrier’s IME doctor says you are only partially disabled and the judge agrees, the carrier can lower your rate and argue you must show you are looking for work. Keep your doctor’s reports current and be ready to challenge a bad IME report.
Does New York Paid Family Leave protect my job if I’m hurt at work?
No. Paid Family Leave covers caring for a family member, bonding with a new child and certain military needs. It does not cover your own injury or illness.
Talk to a New York workers’ compensation attorney
The Law Offices of Frank J. Dito, Jr. handles workers’ compensation claims from the office on Staten Island, for injured workers throughout the five boroughs and across New York State. If you are worried about your job while you are out, call before you resign or sign anything.
Call 718.701.2776 or 800.310.5520. Consultations are free. If we don’t recover money for you, we don’t get paid.
1610 Richmond Road #200, Staten Island, NY 10304
