Virginia, like most other states, has a workers’ compensation anti-discrimination law. Bosses cannot discharge workers because they file workers’ compensation claims. However, there is a major exception regarding light duty work.
Frequently, doctors clear victims to perform light duty work as they recover from their injuries. In Virginia, employers can fire victims if they refuse to accept light duty. Furthermore, the anti-discrimination law does not apply if the victim was fired for just cause. Usually, “just cause” is a violation of a provision in an employee manual or a closely-related violation.
Virginia is one of the only states in the Union where workers’ compensation and job discrimination claims overlap in this way. Therefore, only a highly-experienced Richmond job injury lawyer should handle such claims.
Protected Classes and Workers’ Compensation
Light duty workers’ compensation just cause terminations usually involve the three traditional steps of a job discrimination claim. Initially, the victim must belong to a protected class or participate in a protected activity.
As mentioned, filing a workers’ compensation claim, or planning to file a claim, is a protected activity. Additionally, most Virginia workers are in at least one protected class. The 1964 Civil Rights Act gives special protections based on:
- Age (over 40)
- Sexual orientation
Generally, the more protection one has, the easier it is to invalidate a “just cause” light duty termination.
Prima Facie Case
It’s usually relatively easy to establish a prima facie workers’ compensation discrimination claim, especially in the light duty context. Most injury victims are on light duty assignments for less than six months. At that point, they have usually reached MMI (Maximum Medical Improvement) and, depending on the additional facts, they either return to work or go on disability.
So, the workers’ compensation claim filing is usually not more than a few months old. Typically, an attorney must only establish a temporal connection between the protected activity and the termination. For example, if Wanda files a workers’ compensation claim in January and is terminated for cause in June, her termination was probably illegal. That’s especially true since Wanda is also in a protected class.
Was the “Just Cause” Dismissal a Pretext?
This last element is usually the most controversial one. Savvy employers know that if they terminate protected people, legal action usually follows. So, they have all their ducks in a row.
Insubordination and poor attendance are among the most common just cause terminations. Even if there is no employee handbook, everyone knows they must respect the boss and show up on time. Poor work product and fighting with coworkers could also constitute just cause terminations, although these two areas are a little more subjective.
If the employer claims the termination was for just cause, the employee must prove the “just cause” was merely a pretext. There are two very good ways to accomplish this goal.
One approach involves a legal doctrine called estoppel. Basically, estoppel is legalese for going back on one’s word. Assume Brenda raised her voice in a discussion with her supervisor. Technically, that conduct could be insubordinate and justify termination. But if Brenda had raised her voice before and kept her job, her employer cannot fire her for that behavior.
Unequal treatment is another way to prove that the “just cause” was a pretext. Now assume Brenda and Sarah both show up late for work. Brenda recently filed a workers’ compensation claim. If the boss only fires Brenda, the boss is clearly singling her out because she filed a claim.
Reach Out Today for a Free Consultation
Even if the boss fires you for a just cause while you’re on light duty, you still have legal rights. For a free consultation with an experienced workers’ compensation attorney in Richmond, contact Geoff McDonald & Associates, P.C. Virtual, home, and hospital visits are available.