How Do Workers Compensation and Unemployment Benefits Affect Each Other?

The Ultimate Guide to the Relationship Between Workers Comp and Unemployment Benefits

 

Find Out Whether You Should File For Workers Compensation and Unemployment Insurance Benefits, or Both, and What Other Options You May Have if You Lose Your Job After a Work Injury

 

You have some protection after an injury on the job or the diagnosis of an occupational disease. You can:

 

• File a workers comp claim seeking payment of medical expenses and income replacement benefits.

 

• Bring a tort action if someone else’s negligence caused your work-related injury.

 

• Report the industrial accident to OSHA, or its state counterpart, VOSH.

 

But one thing you do not have is unlimited job protection. Though an employer cannot discipline, retaliate against, or fire you for filing a claim for workers compensation benefits, there are many other situations where an employer can terminate your position, lay you off, or furlough you even though you were injured on the job and are pursuing workers comp benefits or have a Workers Compensation Award Letter. You may have found this out recently because of the COVID-19 (Coronavirus) pandemic, which has affected millions of employees throughout the country.

 

If you are an injured worker who has lost your job, either right after the work accident or after returning to light or full duty, you have options. Your options may include:

 

• Filing a change in condition application seeking temporary total disability or temporary partial disability benefits if you have lost your job or had your hours reduced and your treating physician has restricted you to light duty.

 

• Making an appointment with your workers comp doctor if you were released to full duty but continue to have pain or other symptoms that prevent you from doing all your pre-injury job duties. For example, you may have asked your doctor to put you on full duty even though you continue to have problems because you could not afford the reduction in pay on workers comp. But now that you have been laid off or furloughed, you can use this time to try to get back to 100 percent of your pre-injury condition.

 

• Filing for unemployment benefits with the Virginia Employment Commission (VEC).

 

• Filing for permanent partial disability (PPD) benefits for loss of use of the injured body part if you have not received those benefits already.

 

• Negotiating a workers compensation settlement, either in part by closing out workers comp payments for indemnity only or in full by accepting a cash buyout of your projected future medical treatment also.

 

• Applying for Social Security Disability Insurance (SSDI) benefits, especially if you are over the age of 50 and have a permanent impairment restricting you to modified duty.

 

• Negotiating a severance package if you do not plan on returning to your employer.

 

The purpose of this article is to discuss how unemployment works in Virginia, the difference between unemployment and workers compensation, and when you should apply for each type of benefit. As a Virginia workers comp lawyer, I help injured employees and their families understand all their legal options after an industrial accident and the loss of a job.

 

Keep reading to learn more.

 

If you have any questions about your right to workers comp, unemployment, or Social Security Disability after suffering an on-the-job injury and then being fired or furloughed, call me for a free consultation: (804) 251-1620 or (757) 810-5614.

 

 

What is the Difference Between Workers Comp and Unemployment?

 

Workers compensation provides various benefits if you suffer an injury by accident arising out of and in the course of your employment or contract a disease related to your work. These benefits, which may include payment for medical expenses, cash benefits for wage loss or permanent disability, vocational retraining, and mileage reimbursement and transportation, are paid by your employer, either directly if it self-insured or through a workers compensation insurer such as Travelers or The Hartford. You can only receive these benefits if you prove a causal relationship between your injury and the work environment.

 

Receiving workers comp does not necessarily mean you are unemployed. Many of my clients return to their pre-injury employer, though some do not because their employer fired them, they resigned voluntarily as part of a settlement, or their injuries are catastrophic and they can no longer do the job they had at the time of the injury.

 

Unemployment benefits, on the other hand, provide temporary financial assistance if you lose your job through no fault of your own. Unemployment provides cash payments while you try to find another job but does not cover medical expenses. When you receive unemployment, you have severed all ties with your employer. These benefits are available regardless of whether you were hurt on the job or not, though you must be capable of performing some type of work to receive them.

 

Virginia Unemployment Benefits

 

The Virginia Employment Commission handles claims for unemployment compensation and decides whether you are eligible for benefits. This agency is separate from the Virginia Workers Compensation Commission, which handles claims for workers comp benefits.

 

When Can I File for Unemployment Insurance Benefits?

 

You may apply for unemployment in Virginia if:

 

• You are totally unemployed, or

 

• You are working at reduced hours or wages at your employer’s request

 

How Do I File for Unemployment Benefits in Virginia?

 

There are two ways to file for unemployment in Virginia.

 

First, you can file a claim online by going to the Virginia Employment Commission’s website, www.vec.virginia.gov, selecting “Unemployed,” and then clicking on the link: “Unemployed: File a Claim Online.”

 

Second, you can file a claim by telephone at 1-866-832-2363, from 8:15 a.m. to 4:30 p.m., Monday through Friday.

 

If you have internet access, I recommend filing your claim online.

 

How Often Do I Have to File a Claim for Unemployment Benefits?

 

You must file a weekly claim for unemployment in Virginia.

 

What are the Requirements to Receive Unemployment Compensation in Virginia?

 

You must meet the following requirements to collect unemployment benefits in Virginia:

 

• You must be unemployed through no fault of your own. You are disqualified from receiving unemployment if you quit your job without good cause, or were fired from your job for misconduct in connection with your work.

 

• You must have earned enough money from employers who are subject to the Virginia Unemployment Compensation Act or any similar law in another state.

 

• You must be able and available to work and searching for work regularly.

 

Can I Receive Unemployment Insurance (UI) Benefits if I Am Restricted to Modified Duty Because of a Job-Related Injury or Job-Related Illness?

 

Yes.

 

You are eligible for unemployment if you lose your job while restricted to modified light duty by your treating physician.

 

The VEC, however, will deny your claim for unemployment benefits if your treating physician is disabling you from all work. That is because you cannot certify that you are ready and able to work if you have medical restrictions that prevent you from working.

 

Can I Collect Unemployment if I’m Laid Off by My Employer?

 

Yes. You are eligible for unemployment if you were laid off, regardless of whether your employer calls it a reduction-in-force or downsizing.

 

Can I Collect Unemployment If I’m Fired?

 

Maybe.

 

There are some situations where you can receive unemployment after being fired. For example:

 

• If your employer fired you but did not give you a reason, then you may be able to collect unemployment.

 

• If your employer fired you because you were not a good fit, then you may be able to collect unemployment.

 

• If your employer fired you because you had difficulty performing the job, then you may be able to collect unemployment so long as you can show that you put forth good effort and tried to do your job well.

 

You will not be able to collect unemployment, however, if you were fired for failing a drug test, violating attendance policies, being insubordinate to supervisors, being rude to customers, violating safety rules, or lying about your criminal record and past work experience.

 

Can I Collect Unemployment if I Quit My Job Voluntarily?

 

Usually not.

 

You cannot collect unemployment benefits if you quit your job voluntarily unless you have good cause.

 

You may have good cause for quitting if you left your job because of harassment, discrimination, or dangerous working conditions that violated OSHA standards. You may also have a wrongful termination claim.

 

How Much Money Do I Need to Have Earned to Receive Unemployment?

 

The VEC reviews your recent work history to determine your eligibility for unemployment.

 

To qualify for unemployment, you must have worked during at least two of the quarters of the one-year base period and earned at least a total of $3,000.00 during those quarters. The one-year base period is defined as the earliest four of the five complete quarters before you filed for unemployment.

 

Do I Have to Look for Work to Collect Unemployment Benefits?

 

Yes.

 

To collect unemployment benefits, you must be ready, able, and available to work – and looking for work.

 

This means you must register for work with the Virginia Workforce Network (VWN). The VWN is a public employment service designed to help unemployed workers find suitable jobs and to help employers find qualified workers. It is free to use.

 

The VEC requires that you make at least two job contacts per week to receive unemployment. If you are a member of a labor union with a local hiring hall that finds work on your behalf, you may have the option to seek work only through the union hiring hall.

 

Make sure you keep records of all your job search efforts, including the date and time of your contact, the name of the employer, the name of the person you spoke with, the specific job position you applied for, and the outcome of that conversation. These will be helpful if there is a disagreement over whether you are looking for work.

 

You must also accept all offers of suitable work. Whether a job is suitable depends on how similar it is to your previous employment, how much you will be paid, the length of the commute, and the training, skills, and experience required for the job. If you turn down a job offer that the VEC finds suitable, you may be disqualified from receiving additional unemployment benefits.

 

If you are working for your regular employer at reduced wages or hours, you can collect partial unemployment so long as you work all the hours your employer offers you during each week you claim benefits. If your employer offers you no work in a particular week, then you must file a claim for full unemployment benefits, register with Workforce Services, and begin an active search for work.

 

Can I Collect Unemployment if I Decide to Go Back to School or to Get Additional Vocational Training?

 

Maybe. It depends on the type of education or training you receive and its attendance requirements.

 

To give yourself the best chance of collecting unemployment while going to school or attending training, I recommend asking the VEC to approve it first. You may still have to look for work but the active search requirement will be relaxed.  

 

Who Pays for Unemployment Benefits?

 

The Virginia Employment Commission pays unemployment benefits to you directly but these benefits are funded through taxes on employers.

 

No part of the cost of unemployment benefits is deducted from your weekly paycheck when you are employed.

 

How Long Can I Collect Unemployment in Virginia?

 

You may receive unemployment benefits for a maximum of 26 weeks.

 

Depending on economic conditions, you may be able to receive unemployment for a longer period. For example, additional weeks of unemployment are often available during periods of very high unemployment in the state and nationally.

 

Is There a Waiting Period for Unemployment Benefits?

 

Yes.

 

There is a one-week waiting period during which you are not paid unemployment benefits even though you meet the requirements.

 

How Much Unemployment Will I Get?

 

The amount of unemployment you receive is based on your wages during the base period. The more you made, the more you receive.

 

The maximum weekly unemployment benefit amount is $378.00 and the minimum is $60.00.

 

To receive the maximum unemployment benefit in Virginia, you must have earned at least $18,900.01 in two quarters during the base period. This comes out to an annual salary of approximately $37,800.00.

 

Can I Receive Partial Unemployment Benefits?

 

Yes.

 

You may qualify for partial unemployment benefits during any week you earn less than your weekly unemployment benefit amount because of a lack of work.

 

Are My Unemployment Benefits Taxable?

 

Yes, state unemployment benefits are subject to federal income tax.

 

The VEC, however, will not withhold federal tax from your unemployment benefits unless you ask it to.

 

Am I Eligible for Unemployment if I Received a Severance or a Pay Out of My Accrued Vacation and Sick Leave?

 

Yes, but your weekly unemployment benefit may be reduced by the amount of severance, vacation, or accrued paid time off you receive.

 

How Can I Appeal a Denial of Unemployment Benefits?

 

If your unemployment claim is denied, you have 30 days to appeal the decision to the Virginia Employment Commission. The VEC will hold a hearing at which you may testify, offer documentary evidence, present witnesses, and cross-examine witnesses called by the employer.

 

COVID-19 (Coronavirus), the Federal CARES Act, and Unemployment Benefits in Virginia

 

In March of 2020, the federal government passed a law called The Coronavirus Aid, Relief, and Economic Security (CARES) Act.

 

The CARES Act provides better unemployment compensation benefits and pandemic unemployment assistance for Virginians such as:

 

• An additional $600 per week on top of your state-provided unemployment benefits through July 31, 2020.

 

• A one-time cash payment of up to $1,200.00 for qualifying adults, plus $500.00 for each dependent child age 16 or under.

 

• Up to 13 weeks of unemployment benefits in addition to what the state provides, meaning you can receive up to 39 weeks.

 

• Unemployment benefits for self-employed persons, gig workers (Uber, Lyft, Instacart, etc), and independent contractors.

 

What Pays More: Unemployment or Workers Compensation?

 

For most of you, workers comp will pay much more than unemployment compensation benefits.

 

Under the Workers Compensation Act, income replacement benefits are paid at two-thirds of your average weekly wage for the year before your injury. If you worked for the employer for less than a year, then your workers comp income replacement benefits are based on your earnings from the date you started up until the date of injury.

 

Here is an example of how it would work.

 

Let’s say you earn $60,000.00 per year when you suffer a back injury and a herniated disc in a work-related car crash.

 

Under workers comp, you would receive $769.00 per week in income replacement. Unemployment benefits, on the other hand, cap out at $368.00 per week usually.

 

What Pays Benefits Longer: Unemployment or Workers Comp?

 

You have the potential to receive workers compensation benefits for a much longer period than you do unemployment compensation.

 

Under the Workers Compensation Act, you are eligible for lifetime medical benefits for your work injury and up to 500 weeks of income replacement benefits. Some of you may even qualify for permanent and total incapacity benefits, which pay income replacement for the remainder of your life.

 

Unemployment compensation benefits are available for up to 26 weeks, though this period is sometimes extended by federal law if there are special circumstances such as the Coronavirus pandemic.

Can I Apply for Both Workers Compensation and Unemployment at the Same Time?

 

Yes.

 

You are allowed to apply for both unemployment and workers comp at the same time.

 

What are the Benefits of Applying for Workers Comp and Unemployment at the Same Time?

 

I recommend applying for both unemployment and workers comp if you have lost your job while under light-duty restrictions for a work injury and your employer or its workers comp insurance carrier is denying your initial claim for benefits or change in condition application. There are several reasons for this:

 

• If your employer’s insurance carrier raises defenses to your workers comp claim and refuses to pay, you may have to go through the discovery process, which includes interrogatories, depositions, and requests for production of documents, and a workers comp hearing before you receive payment. This can take six months or longer. Unemployment compensation benefits are usually paid much quicker than workers comp benefits and can provide much-needed income while you wait for a decision in your workers comp case.

 

• You have an obligation to look for light-duty work to receive an award for income replacement benefits under workers comp and registering with the Virginia Workforce Connection through the VEC can help you meet this obligation to conduct a good faith job search. Be careful though. To receive unemployment benefits, you only have to contact 2 potential job sources per week. The Workers Compensation Commission, however, requires you to contact 5 potential job sources per week. Once you receive the award for income replacement, you no longer have to look for work within your modified duty restrictions, though the employer and its workers compensation insurance carrier or third-party administrator (TPA) may ask you to participate in vocational rehabilitation services.

 

Should I Apply for Unemployment Benefits if I Am Totally Disabled From Work Because of An On The Job Injury?

 

No.

 

The VEC will deny your claim for unemployment automatically if you are disabled from all types of work. And registering with the Virginia Workforce Connection is unnecessary from a workers comp standpoint because you have no duty to look for work if you are totally disabled.

 

In addition, you will hurt your credibility – and likely lose your workers comp case – if you claim that you are totally disabled while receiving unemployment benefits. The deputy commissioner presiding over your work injury case will likely have a problem with you telling the VEC that you are capable of working while simultaneously telling the Workers Compensation Commission that you cannot.

 

Can I Receive Both Workers Comp and Unemployment Benefits at the Same Time?

 

Not usually.

 

Your unemployment benefits will be reduced by the weekly amount of your workers compensation check. So though it sometimes makes sense to file for both unemployment and workers comp at the same time, you cannot receive both benefits at the same time. Unemployment, however, can provide valuable income while your workers comp claim is pending.

 

It is possible, however, to receive unemployment then, if your mental or physical condition worsens, to receive workers compensation after your unemployment benefits stop.

 

What Happens if I Receive Unemployment Benefits, then Get Approved for Workers Compensation?

 

 

It is possible that you get approved for workers comp wage loss payments after you’ve received the full 26 weeks of unemployment, especially if you had to litigate your claim.

 

If this happens, you must pay back the unemployment benefits to the Virginia Employment Commission for any periods that overlap, meaning any periods where you were awarded and collected both unemployment and work comp.

 

Do I Lose My Lifetime Medical Award for My Work Injury If I Receive Unemployment Benefits?

 

No.

 

Your employer at the time you were hurt on the job and its insurance carrier remain responsible for the payment of medical treatment that is reasonable, necessary, authorized, and causally related to your work injury or occupational disease, no matter your work status. This is true if you change employers or lose your job.

 

VA Workers Comp Lawyer Who Will Evaluate Your Claim for Free

 

If you’ve lost your job after being hurt at work or diagnosed with an occupational illness and aren’t sure whether workers comp or unemployment – or both – is your best option, email me at cpollardjba@gmail.com or call me at (804) 251-1620 or (757) 810-5614. I represent injured workers throughout Virginia and want to help you determine how to get the financial support you need during this difficult time