Workers compensation and labor and employment law matters are related and often intersect. But there are limits to the requests you can make and the benefits you can receive under Virginia workers compensation. Many injured employees are surprised to find out just how few remedies are available through workers’ comp.
I get many calls and e-mails from potential clients who were hurt at work and were forced to use their paid time off – sick and vacation leave – for the days missed. Often the injured employee had to use all his or her available sick and vacation leave – and then some – because the injury was so severe he or she missed several weeks from work. The employees want to know if the Virginia Workers’ Compensation Commission will order the employer to reinstate all sick leave and vacation leave used for the days missed due to a compensable injury by accident.
Unfortunately the answer is no. The Workers’ Compensation Commission does not have the authority to order the employer to reinstate sick leave or vacation time used because of the workplace accident. The Commission’s jurisdiction is limited to compensation matters and does not include authority over the employer’s policies regarding sick leave or vacation time. See Epps v. Inova Fair Oaks Hosp., VWC File No. 213-55-21 (March 23, 2007). As such the Commission has no authority to order the employer to reimburse the claimant for paid time off used.
What options does an injured employee have if he or she lost sick leave or vacation time because of an injury covered under the Virginia Workers’ Compensation Act?
An injured employee has several options if the employer forced him or her to use sick leave and vacation time due to a work injury. These options include:
1. File a Virginia workers compensation claim. If the employer’s insurance company accepts your claim or if the Commission finds that you are entitled to temporary total disability benefits then the employer cannot charge the periods covered under your award order against sick or vacation time. Thompson v. AMI, 57 O.I.C. 348 (1976). An employer cannot credit compensation disability payments against your accumulated sick leave. Cain v. Perdue Farms, Inc., 57 O.I.C. 348 (1976).
2. Contact an employment lawyer. Your employer’s decision to charge you sick and vacation leave for time missed from work due to a compensable injury may violate the employer’s policies or other law. If so you may have an employment claim that falls outside the jurisdiction of the workers’ Compensation Commission.
3. Ask that your sick leave or vacation time be reinstated. In my experience many employers will voluntarily reinstate your sick leave or vacation time if you file a claim for benefits and get approved for disability. If the employer reinstates your sick leave or vacation time then it is entitled to a credit for payments made to you. Otherwise it receives no credit for payments made to you from paid time off. Any applicable credit will be deducted from your weekly compensation payments.