Your Employer Cannot Fire You Because You Filed a Workers Compensation Claim


Many injured employees either wait to file or refuse to file a workers compensation claim in Virginia because of fear. Fear of getting fired and losing their job. Fear of having to go weeks or months without a paycheck while their bills continue to pile up. Fear of not having the physical or financial means to take care of their spouse and children. And fear of having to start over with a new career or with a new employer. This fear is a powerful weapon that employers and insurance companies use to their advantage.


Time and time again we see injured employees who decide not to file a workers compensation claim because they’re worried that their boss will fire them. Instead of pursing the workers compensation benefits they’re entitled to, these employees use their own sick and vacation days if they miss time from work due to an injury and tell the medical providers with whom they treat to bill their private health insurance coverage. This is a mistake that can have serious consequences in the future.


We understand that some employers ask their workers not to file a claim for workers compensation so that their insurance premiums don’t go up or so that their record with OSHA stays clear. We also understand that many employers, especially small and mid-size employers, start to treat injured workers differently after a claim has been filed with the Workers’ Compensation Commission. There is nothing that you – the injured worker – can do about that. But we have some good news. In Virginia your employer cannot fire, demote, discipline, or retaliate against you in any way just because you filed a claim for workers comp benefits.


Like many other states, Virginia makes it unlawful for an employer or person to retaliate against an employee solely because the employee intends to file or has filed a claim for workers compensation benefits. In fact the applicable statute, Virginia Code Section 65.2-308, goes one step further and makes it illegal for an employer or person to terminate an employee who has testified or is about to testify at a workers compensation hearing. This means that a coworker can testify on your behalf without fear of losing his or her job.


Reasons that Avoiding Filing a Workers Compensation Claim to Save Your Job Can Hurt You in the Future


If you have private health insurance and are worried about losing your job then you may think you’re better off treating through private health insurance after a work injury. But you may run into problems down the road if you do this. Your private health insurance company may review the medical records and determine that your employer’s workers comp insurance company is responsible for treatment. If this happens then the private health insurance company may ask you to reimburse it for money paid on your behalf. Or it may retract payments made, in which case your health care provider may sue you for payment.


Using private health insurance instead of filing a workers comp claim can turn into a financial nightmare far worse than if your employer tries to retaliate against you.


And even if you don’t file a claim, your employer may start to look for ways to fire you if you get hurt at work. If your employer is smart then it will not come right out and say you’re fired because of the work injury or a workers’ comp claim. But it may monitor your job attendance and performance closely. Any mistake you make may be used against you. And if you wait to file a workers comp claim until after the employer treats you differently, you may be barred from receiving benefits due to the notice requirement or statute of limitations.


For these reasons Virginia workers compensation is often the best option if you’re hurt on the job.


What if I Don’t Have an Employment Contract? Can My Employer Still Fire Me for Filing for Workers’ Comp?


Most of you work at will. This means that your employer can terminate you for any reason or for no reason whatsoever, so long as the reason is legal. It also means that you can quit your job at any time for no reason or any reason at all. At will employment works both ways. If you don’t know whether your employment is at will then chances are good that it is.


Fortunately Virginia recognizes certain exceptions to at will employment. One of these exceptions is the public policy exception. This exception makes it unlawful to terminate an employee if the termination violates either one of the state’s public policy doctrines or a specific statute.


By passing Code Section 65.2-308, Virginia has stated that protecting employees who either want to file a workers compensation claim or to testify at a workers compensation hearing is valid public policy. It is therefore illegal to fire an employee who files a claim for benefits, regardless of the type of worker he or she is and what type of accident he or she was injured in.


I Was Hurt at Work and My Employer Fired Me. What Should I Do?


You do not have unlimited job security just because you were hurt on the job. Your employer can still terminate you legally so long as it does so for reasons that are unrelated to your filing of a workers compensation claim or your decision to testify at hearing.


If you were hurt at work and got fired or demoted, see if one of these situations applies:


1. Positive Drug Test. Many employers and insurers require injured workers to take a drug test after a workplace accident. If you are fired because you failed that drug test and tested positive for drugs or alcohol at the time of your injury, you should contact a workers’ compensation attorney immediately. The employer may be able to terminate you for violating their drug policy. But you may be entitled to workers’ compensation benefits if the alcohol or drugs did not cause your accident. You’ll need an attorney to help you fight the intoxication defense and to guide you through the job search and marketing process.


2. You Were Fired While the Doctor Has You Out of Work. Unfortunately the Virginia Workers’ Compensation Act does not provide job protection. Your employer may terminate you if you’re unable to return to work or if it does not have work available within your light duty restrictions. Of course, state and federal employment laws may apply. If you’re fired because the employer does not have work available within your restrictions then you may be entitled to ongoing workers compensation wage loss benefits.


3. You Violated a Safety Rule or Company Policy. Your employer may terminate you lawfully if it has a reasonable basis for doing so. If you violated company policy or a stated safety rule, and that violation caused the work injury, your employer may discipline or fire you. Contact a workers compensation attorney if your employer fires you for this reason. You may be able to overcome a willful misconduct defense to get the workers’ comp benefits you need.


If one of these situations applies, then it’s unlikely that you have a retaliation case based on being fired for filing a workers’ compensation.


Were You Terminated or Disciplined for Filing a Workers Compensation Claim?


If you think that you were terminated because you filed a claim, contact a workers compensation attorney right away. Your attorney will interview you, investigate the facts, and review any documents you provide from your employer. If he or she thinks that you have a valid retaliation case, then your attorney may file a lawsuit in circuit court alleging that you were discharged in violation of Virginia Code Section 65.2-308(B). You may have a legal cause of action against both your employer and the individual who fired you.


This a labor and employment law action that is not within the Commission’s jurisdiction.¬†Under the applicable code section you have the right to a trial by jury for your retaliation case. If you prevail then the court can award you actual damages, including back pay owed with interest, and order your employer to reinstate your position and to pay your attorney’s fees.


If you need help after a workplace accident, or think that your employer retaliated against you and fired you because you filed a workers compensation claim in Virginia, call, text, or email Corey Pollard for a free consultation. We represent all types of injured workers in all types of work accidents that happen in Virginia.