If you receive a work injury, you might be concerned about losing your job if you file a workers’ compensation claim, but don’t worry; you can’t be fired for filing a workers’ compensation claim. The Virginia Workers’ Compensation Act protects workers who file claims for injuries at work from employer retaliation. If you have concerns about losing your job after you file a claim, you should talk with an experienced workers’ compensation lawyer as soon as possible.
Anytime you have a workers’ compensation claim, it’s essential to take the right steps to protect your claim to avoid losing your rights. Talking with an experienced workers’ compensation lawyer is the best way to ensure that you get the benefits you deserve.
Workers’ Compensation Act Protection from Discharge
A provision in the Virginia Workers’ Compensation Act, found at Virginia Code § 65.2-308, protects an employee who files or intends to file a claim under the act from employer retaliation. Subsection A of the statute states: No employer or person shall discharge an employee solely because the employee intends to file or has filed a claim under this title or has testified or is about to testify in any proceeding under this title. The discharge of a person who has filed a fraudulent claim is not a violation of this section.
That section protects not only the injured worker but also any fellow employee who testified or plans to testify in the injured worker’s case. For the protection to apply, the worker’s claim must be made in good faith and cannot be fraudulent.
Subsection B of the law provides the remedy for an employee who is discharged in violation of the statute. The remedy is not in the Workers’ Compensation Commission but in the circuit court with jurisdiction over the employer or person who discharged the employee. In deciding a case, a court has authority “to restrain violations and order appropriate relief,” including ordering payment of actual damages and attorney’s fees to a successful claimant, as well as rehiring or reinstatement. The court also may order payment of back pay plus interest.
Limitations on Protection From Employer Retaliation
Despite the protections in the law, there are circumstances in which an injured worker may lose their job after a work injury. In these complex situations, you should always get help from a workers’ compensation lawyer. (Your employer cannot fire you for hiring a lawyer to help with your claim, either.)
For example, if the doctor clears an injured employee for light-duty work only, and the employer legitimately does not have suitable light-duty work, they may have a basis to lay off the worker. In addition, if the employer assigns light-duty work, but the employee cannot satisfactorily perform the job, the employer may be able to discharge the worker.
Your employer is not required to hold your previous position while you recover. If you miss work for over six months, the employer may hire another worker to replace you or terminate the position. In this situation, the employer may have a legitimate reason for terminating the employee, as opposed to acting solely on the basis that the worker filed a claim.
Challenging a Discharge
To contest a termination that occurs following a workers’ compensation claim as employer retaliation, the worker must be able to demonstrate the employer’s real reasons for the discharge. If the evidence proves the discharge was due to filing the claim, a court action may be successful.
Assistance from a knowledgeable workers’ compensation lawyer is essential to determine whether a basis for disputing the discharge exists. If it seems there has been employer retaliation that led to the discharge, the lawyer then must prove that basis to the court in order for the worker to recover damages and other relief.
If you think you have a claim for unlawful discharge following a workers’ compensation claim, you should never attempt to challenge the discharge without representation by a workers’ compensation lawyer. Doing so could harm your ability to get relief for an employer’s wrongful conduct. You should contact a lawyer as soon as your employer takes questionable action.
Schedule a Free Consultation With an Experienced Richmond, Virginia Workers’ Compensation Lawyer
At the Richmond law firm of Renfro & Renfro, our dedicated workers’ compensation lawyers help clients with all matters relating to Virginia workers’ comp claims, including challenges to employer actions that constitute retaliation for filing a claim, such as discharge and termination. Your first consultation is always free of charge, so you have no reason to wait to talk with us. We welcome you to contact us for your free consultation.
