W. Va. Code R. § 126-158-7

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 126-158-7 - Discriminatory Practices

7.1. W. Va. Code §§ 23-5A-1 et seq. provides that an employer shall not terminate an injured employee while the employee is absent from work due to a work-related, compensable injury and is receiving or is eligible to receive TTD benefits, unless the injured employee has committed a separate dischargeable offense.

7.1.1. A separate dischargeable offense shall mean misconduct by the injured employee wholly unrelated to the injury or the absence from work resulting from the work-related, compensable injury.

7.1.2. A separate dischargeable offense shall not include absence resulting from the injury or from the inclusion or aggregation of absence due to the injury with any other absence from work.

7.2. It shall be a discriminatory practice for an employer to fail to reinstate an employee who has sustained a work-related, compensable injury to the employee's former position of employment, upon demand for such reinstatement, provided that the position is available and the employee is not disabled from performing the essential duties of the position, with or without accommodations.

7.2.1. If the former position is not available, the employee shall be reinstated to another comparable available position with duties the employee is capable of performing. A comparable position shall mean a position which is comparable in wages, working conditions, and, to the extent reasonable practicable, duties to the position held at the time of injury.

7.2.2. A written statement from a medical professional approving the injured employee's return to regular employment shall be prima facie evidence that the employee is able to perform his/her duties.

7.2.3. In the event that neither the former position nor a comparable position is available, the injured employee shall have a right to preferential recall to any job which the employee is capable of performing which becomes available after the employee notifies his/her employer that reinstatement is desired.

7.2.4. The right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that reinstatement is desired. The employee must provide the employer with a current mailing address during the one-year period.

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W. Va. Code R. § 126-158-7