VIDEO TRANSCRIPT
Hello, my name is Toney Stroud, an attorney with Steptoe & Johnson. I currently work out of our Columbus, Ohio office and am the practice group leader for our Workers’ Compensation department. One of the biggest challenges that face an employer today is how do you treat an injured worker once that worker is off, and how do you deal with issues related to return to work. West Virginia can be very challenging with respect to an individual who’s off on workers’ compensation benefits. There are many rights that the injured worker has that employers need to be aware of. These are rights that are conferred upon the injured worker by statute and can be easy to violate if you’re not familiar with all of the laws in West Virginia related to this issue. With respect to workers’ compensation law only, once a worker is injured and is unable to return to his or her job, there is no requirement that you keep that job open. However, if you do concurrently count your FMLA leave and workers’ comp leave concurrently, FMLA controls during the initial 12-week period for FMLA benefits. However, from a purely workers’ compensation standpoint, you do have the right to fill that spot - the law recognizes that employers have to continue doing business. While this statute is noted as an anti-discrimination statute, there is one area that employers need to be aware of more than any other and that is with regard to what can you do with this employee while they are receiving temporary total disability benefits. In West Virginia, the law is very clear - that an employer cannot terminate someone who is receiving or eligible to receive temporary total disability benefits. While this statute is noted as an anti-discrimination statute, many employers have policies that if someone is out of the workforce for 180 days or whatever the time period may be, the person’s job is terminated. West Virginia’s law simply does not allow employers to do that and it can be very troubling for them when this does occur. If someone is receiving temporary total disability benefits, there is a strict prohibition against terminating that person’s employment. Now the statute does have some vagueness in it in that it also says that if the person is eligible to receive those benefits, you cannot terminate them. Unfortunately, there is no guidance on what “eligible received benefits” is, and I would advise you to seek counsel when you’re looking at those issues. I think you have to look at that on a case by case basis.
The other part of this particular law that is somewhat troubling is the return to work rights that are eligible to injured workers. Under this particular statute in West Virginia, once a person is injured and makes a demand to be reinstated, West Virginia law requires that person be reinstated to his or previous job, if the job is available and the injured worker is capable of performing the essential functions of that job. Should that not be available, the next step in the process is to offer the injured worker a comparable position, and the law says comparable means with respect to wages, duties, etc. If a comparable position is not available, then the law requires that you place the person on a preferential recall list for a one-year period of time. During this one-year period, I think arguably you have to offer the person any job that becomes available and that the employee is capable of performing. There is a lot of different information contained in the statute and a lot of areas that allow employers to potentially get into some difficulty with the law. I always encourage you to look at these on a case by case basis. Once an injured worker goes out on workers’ compensation leave, be proactive, keep in touch with the injured worker, find out his or her condition. When the doctor has released them to return to work, start the dialogue at that point in time to determine if this person is going to come back into your place of business. I encourage employers to do this because there is.. – our law is silent on if there is any time frame involved on when this demand to reinstatement can be made. You can envision a scenario when someone is out of the workforce, has been out for a couple of years, employers lost contact, and that person makes a demand for reinstatement, and I think under West Virginia law, you arguably have to run through these steps if you have not taken these steps. These cases – there is no hard line, fast rule for how to deal with an injured worker. You have to look at them on a case by case basis any time that you’re looking at making a termination decision with regard to any employee who has been on workers’ compensation benefits. I advise you and urge you to seek counsel. Thank you.