In West Virginia, when dealing with an employee who has been injured on the job, it is considered a discriminatory employment practice for an employer to not reinstate the injured employee back to the employee’s pre-injury position when the employee demands reinstatement, the position is available, and the employee is no longer injured and is capable of performing duties associated with the position. In fact, the West Virginia legislature has enacted a statute stating as much. But, how is an employer supposed to know that an injured employee who demands reinstatement back to the available pre-injury position is recovered and able to perform the duties associated with the position?
According to the statute, a written statement from a physician approving the injured employee’s return to work is prima facie (legalese and a fancy way of saying “accepted as true until proven otherwise”) evidence that the employee is able to return to work. But is an employee also required to present a medical release or doctor’s note to the employer? According to the West Virginia Supreme Court, it is not. In a recent decision, the court held that a medical release was not required under West Virginia law. The employer in the case terminated an employee after the injured employee returned to his pre-jury position. The employer argued that the injured employee failed to submit medical evidence indicating that he was capable of performing the duties associated with his pre-injury position; therefore, a discrimination claim could not be found under the West Virginia statute.
The court reasoned that the injured employee’s own testimony regarding his ability to perform the duties relating to the position, coupled with daily work logs and an affidavit from his supervisor stating he was physically able to perform the necessary work, was sufficient evidence to show that the employee could, in fact, return to the pre-injury position. It should be noted that the employer in the case failed to have policies or procedures in place regarding the types of necessary documentation it required to be submitted by the injured employee before returning to the pre-injury position.
What It Means to You
Having policies and procedures in place to specify necessary documentation from an injured employee who wishes to return to a pre-injury position benefit both the employer and the injured employee. For an employer, implementing such policies will help to prevent employment discrimination claims and potential liability exposure. For the injured employee, these policies ensure that the injured employee is medically cleared before returning to the pre-injury position, thus reducing the likelihood of further injury.
The attorneys at Cipriani & Werner, P.C. have the experience and expertise necessary to help assist your company in drafting and implementing such protective policies.