If you were injured on the job in West Virginia and needed time off from work, you’re probably concerned about whether you can go back to your job. In many states, employers have no obligation to hold an injured workers’ job for them. However, in West Virginia, workers’ compensation laws provide significant job protection rights to injured workers. (For recently injured employees, see our article on how to file a workers’ comp claim in West Virginia.)
In West Virginia, all employers are prohibited from firing an employee who is temporarily disabled and off work due to a work-related injury. To be eligible, you must be receiving—or be eligible to receive—temporary disability benefits. However, you can lose the right to job protection if you have engaged in misconduct that’s entirely unrelated to the work injury or absence due to the injury.
When you are cleared to return to work or reach maximum medical improvement, you have the right to demand reinstatement to your former position, or a comparable position if the former position is not available.
If your former position is still available, you must be reinstated to that position upon request. However, you must be capable of performing the duties of the prior position. This can be shown by presenting a doctor’s note approving your return to the former position.
If your former position is unavailable, you must be reinstated to a comparable position. The comparable position must be available, and you must be capable of performing its duties. A comparable position is one that is similar to your former position in terms of wages and working conditions and that has reasonably similar job duties.
If you cannot be returned to the former position or a comparable position, you have a right to “preferential recall.” This means that you can demand reinstatement to any job that you are capable of performing and that becomes available up to one year after your demand for reinstatement. To remain eligible for preferential recall, you must provide the employer with a current mailing address.
If your employer does not follow the law regarding termination and reinstatement, you can file a lawsuit against your employer for lost wages and other damages. Additionally, you can receive a higher permanent partial disability award through workers’ comp if the employer fails to return you to the pre-injury job or a comparable job when such position is available. (To learn more, see our article on the types and amounts of workers’ comp benefits in West Virginia.)
An employer cannot discriminate or retaliate in any manner against present or former employees because they applied for or received workers’ compensation benefits. For example, an employer cannot fire you simply because you filed a workers’ compensation claim.
The Americans with Disabilities Act (ADA) is a federal employment law that makes it illegal for employers with 15 or more employees to discriminate on the basis of disability. The ADA also requires covered employers to provide reasonable accommodations to individuals with disabilities, if it would allow them to do their jobs. Under this law, your employer might be required to make modifications to the job or workplace in order to allow you to return to your prior job or to a comparable position. West Virginia has a similar law that applies to employers with 12 or more employees.
However, the intersection of disability laws with workers’ comp laws is very complex. You should consult with an employment lawyer if you believe your rights under these laws have been violated.