It is a common and sometimes justifiable concern for some employees around the nation. They worry that if they file a workers' compensation claim they will be fired by their employer. In many jurisdictions, such retaliation by employers is prohibited by law. That is not to suggest that it never happens. It is just prohibited by law. Apparently, that is not yet the case in Virginia.

The Virginia House passed a bill this year that would make retaliation by employers for the filing of a workers' compensation claim illegal. Introduced by Delegate Lee Carter, he told a Senate committee reviewing the bill that "House Bill 1754 addresses a problem that is very commonly incurred by working people in the Commonwealth. So commonly in fact that in the building trades there's a joke for it which is when you fall off a ladder, you are fired for it before you hit the ground."

Despite the bill passing the House, it appears that it will not become law this year. The Senate committee killed the bill, because “senators are uncomfortable with part of the bill that would have created a cause of action against employers who take action based on a belief that a worker might file a claim.” It should be noted that the vote to reject was bipartisan.

It is easy to see their discomfort with the wording of this legislation. Allowing potential tort action based on the perception of an assumption of what “might” have happened is opening Pandora's box. It's a bad thing when an employer fires an employee for simply filing a workers' comp claim. It is not wrong to terminate an employee for justifiable reasons. Consider the situation where an employee blatantly disregards a safety requirement, and an incident occurs. The employee appears to be ok, but their actions still needlessly endangered themselves and others. Does the employer have a right to act on the intentional safety violation? Or could that action then (under this law) be interpreted as an attempt to avoid a potential claim in the event the employee develops symptoms of an injury?

The dependence on conjecture and speculation does not make a strong foundation for liability claims, but it could still be a wildly expensive effort to defend. Employer documentation would need to be extraordinarily precise, as disproving a negative that has simply been alleged is quite difficult. This legislation appears to have been worded in a manner that could create those costly scenarios.

For now in Virginia, it is back to the drawing board. It is good to want to protect the rights of employees injured on the job. It is quite another to expose their employers to endless defense over perceptions of what they might have been thinking.

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