So, you were hurt at work in Virginia and were terminated. Sadly yes, you can be separated from your employment but only within certain limitations. Here is what you need to know:
Retaliation Is Not a Legitimate Reason for Termination
If you were fired as retaliation for filing a workers compensation claim, you may be able to file suit against the employer (Section 65.2-308 of the Code of Virginia). You may recover actual damages plus attorney’s fees in this type of suit, however, this is separate from your workers compensation claim.
Workers compensation only addresses the injured worker’s lost wages and medical benefits. It DOES NOT regulate employers or their actions. You may need to contact an attorney who handles labor and employment matters. If you feel you need a labor and employment attorney, please contact my office and my staff can put you in touch with an attorney who can assist with this.
Illegality of Unjust Termination of Employment
Some companies show their disapproval of the use of worker’s compensation by blatant discrimination or even unjust termination of employment. Not only is it wrong, it’s illegal.
Many states take the extra step of guarding injured employees by allowing civil actions against offending companies. This means a worker can file a claim for retaliatory discharge. By filing such a claim, the employee must prove to a judge or jury that it’s more likely than not that he or she was wrongfully terminated.
Even if the employer does not go to the extremes of firing the worker, there could be other types of discrimination that are just as illegal such as demotion. Employees are protected from this type of abuse when filing a worker’s compensation claim because of the ability to file a cause of action against the company.
Fired After Positive Drug Test
If you are fired because you tested positive for drugs or alcohol at the time of the accident, you need to contact an experienced workers compensation attorney immediately. The employer may be able to terminate you for a violation of their drug policy but you still may be able to receive Virginia Workers Compensation if the drugs or alcohol did not “cause” the accident. The attorney may be able to fight this but it can be a lengthy legal process and you don’t want to try and fight this on your own.
Fired While the Doctor Has You out of Work
If you are terminated from your employment while the doctor has you out of work, workers compensation can still pay you while the doctor says you are unable to work. Sadly, workers compensation does not offer job protection but, depending on your situation, you may be able to continue receiving workers compensation if the doctor releases you to some form of light duty work.
Fired After Returning to Work on Work Restrictions
If you are fired after you return to work from a work injury and are placed on light duty, you may lose your workers compensation benefits if the employer can show you were fired for “cause” (misconduct, absenteeism, insubordination, tardiness, fighting, and so on). The employer may even look for a reason to terminate you so if you are back to work on light duty work restrictions, so you need to be on your best behavior! The flip side is, if you are fired due to things beyond your control or “without cause” (the employer could not accommodate your work restrictions any longer, the employer had to fill your position or could no longer hold your job, the company went out of business or had to downsize), you may be entitled to continue receiving lost wage benefits.
Depending on your situation, you may be required to do job searching in order to remain eligible to receive lost wage benefits (this is complicated and the Commission has STRICT requirements that injured workers have to meet). If you are unsure of your status or eligibility to collect lost wage benefits, contact an experienced workers compensation attorney to get some clarity on whether or not you need to do the job searching in order to keep receiving your lost wage benefits.