The Pennsylvania Workers’ Compensation Act Needs Anti-Retaliation Protections

Pennsylvania’s Workers’ Compensation Act (the “Act”), enacted in 1915, guarantees medical care and wage replacement for workers injured on the job. For more than a century, it has anchored the Commonwealth’s workplace injury system.

But the Act contains a glaring gap. It says nothing about whether employers can fire or punish workers for asserting their statutory rights. Workers who report injuries and seek benefits are entitled to those benefits—but not, by any explicit legislative command, to their jobs.

Pennsylvania courts have stepped in to fill that void. Their efforts, while meaningful, have produced a fragmented common-law framework that falls short of the protections a modern anti-retaliation statute would provide. Until the General Assembly acts, workers’ protection against retaliation for seeking benefits rests on judicial implication, not legislative design.

Pennsylvania courts have filled the gap—but only partially

In Shick v. Shirey, 716 A.2d 1231 (Pa. 1998), the Pennsylvania Supreme Court held that terminating an employee for filing a workers’ compensation claim violates public policy. The court recognized a common-law wrongful discharge cause of action—grounded in the “Grand Bargain” at the heart of the Act: injured workers surrendered their common-law tort rights against employers in exchange for prompt, certain statutory benefits. Allowing employers to retaliate would deter workers from claiming those benefits and gut the bargain entirely.

But Shick left the at-will presumption in place. Workers’ compensation retaliation claims therefore track the familiar three-part structure used in Title VII cases: the employee engaged in protected activity (filing a claim); the employer took an adverse action after or alongside that activity; and a causal link connects the two. Courts assess causation through circumstantial evidence—temporal proximity, pretextual explanations, inconsistent treatment.

Later decisions—Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511 (Pa. 2005); Christman v. Cigas Mach. Shop, Inc., 293 F. Supp. 2d 538 (E.D. Pa. 2003); Hackett v. Cmty. Behav. Health, 2005 U.S. Dist. LEXIS 8410 (E.D. Pa. May 6, 2005); Reifer v. Colonial Intermediate Unit 20, 462 F. Supp. 2d 621 (M.D. Pa. 2006)—have confirmed the doctrine’s existence. But they have not resolved its contours. The operative burden-shifting framework, the scope of protected activity, and the full range of available remedies remain unsettled.

Common-law remedies fall short

Even when workers prevail, what they recover is limited and unpredictable. The wrongful discharge cause of action carries no fee-shifting provision, no civil penalty structure, and no administrative mechanism for reinstatement or enforcement. Punitive damages are available where the employer’s conduct is willful or in reckless disregard of the employee’s rights—but that finding depends on jury composition and case-specific facts. The result is inconsistency, not deterrence.

The absence of statutory remedies also affects access to counsel. Without guaranteed attorneys’ fees or defined damages enhancements, a workers’ compensation retaliation claim may be economically viable only when wage loss is substantial. Lower-wage workers and those who quickly mitigate their damages may find that litigation costs outweigh any realistic recovery, making these claims impractical to pursue on a contingency basis.

No public enforcement

Because the Act contains no express anti-retaliation provision, no agency can enforce one. The Bureau of Workers’ Compensation adjudicates benefits disputes but lacks authority to address retaliation arising from those disputes. The Department of Labor & Industry administers no civil enforcement process for such claims. Workers must instead bring independent civil actions, separate from their underlying benefits proceedings, adding cost, delay, and the prospect of inconsistent outcomes on closely related issues.

Other statutes—the Pennsylvania Human Relations Act, the Americans with Disabilities Act, and the Family and Medical Leave Act—may supply retaliation protection for some injured workers. But each protects a status (disability) or a discrete activity (taking protected leave), not the act of filing a workers’ compensation claim. Workers with non-disabling injuries, soft-tissue or repetitive-strain conditions, or short-duration claims that never trigger FMLA are left without protection. A targeted provision in the Act is necessary because neighboring statutes were not designed to fill that gap.

What an anti-retaliation amendment should look like

The General Assembly should amend the Act to expressly prohibit retaliation against employees who exercise their rights under it. Federal and state models already exist. The False Claims Act’s whistleblower provision, 31 U.S.C. § 3730(h), and Pennsylvania’s Whistleblower Law, 43 P.S. §§ 1421–1428 (covering public-sector employers), provide useful structural templates.

An effective amendment should include five features:

• An explicit prohibition on retaliation or interference with an employee’s exercise of their rights under the Act;
• A burden-shifting framework that, once the employee establishes a prima facie case, shifts the burden of persuasion—not merely the burden of production—to the employer to prove a legitimate, non-retaliatory basis for the adverse employment action;
• Meaningful remedies independent of any workers’ compensation recovery, including reinstatement, back pay, enhanced damages, civil penalties, and attorneys’ fees;
• Protection for internal complaints, participation in proceedings, and cooperation with investigations—not just the filing of claims; and
• Concurrent jurisdiction with Workers’ Compensation Judges to hear retaliation claims alongside the underlying benefits claims—with administrative findings serving as prima facie evidence in any subsequent civil action—to promote efficiency and consistency while preserving the employee’s right to seek a jury determination on damages.

Looking to other states for guidance

New York and New Jersey codified anti-retaliation protections years ago. New York Workers’ Compensation Law § 120 prohibits discharge or discrimination against employees who claim benefits and authorizes reinstatement, back pay, and civil penalties. New Jersey’s statute, N.J.S.A. § 34:15-39.1, provides a cause of action for retaliatory discharge, including reinstatement, back pay, and a quasi-criminal fine. Both statutes empower agencies to impose penalties and order reinstatement without forcing injured workers into costly litigation.

Pennsylvania should follow suit. Aligning the Act with its neighboring jurisdictions would give employers clearer guidance and workers more predictable remedies.

A legislative fix is long overdue

Pennsylvania’s workers’ compensation system is meant to be a safety net for injured workers. Without anti-retaliation protections, it can become a trapdoor the moment those workers assert their rights. Codifying an express provision—with meaningful remedies, fee shifting, and an administrative enforcement mechanism—would modernize the Act, strengthen its deterrent effect, and reaffirm the Commonwealth’s commitment to protecting workers from economic coercion.

Until the General Assembly acts, that commitment hinges on nothing more than judicial inference.

Jeremy E. Abay is the chair of the national employment litigation group at Pond Lehocky Giordano Inc., the largest workers’ compensation and social security disability law firm in Pennsylvania, and one of the largest in the U.S. He can be reached at jabay@pondlehocky.com.

Reprinted with permission from the June 11, 2026 edition of The Legal Intelligencer © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.