Addressing an employee who has been cleared for duty can be tricky. One of the first issues that must be addressed is how “cleared” are they? An employee who was injured on the job may be declared to be able to return to work “with restrictions.” These restrictions can be minor or major impediments to returning to work. In some situations, the restrictions may completely render them unable to return to work at all (for you). In this situation you will need to look very hard and see if there is any position within your organization that can accommodate their new limitations. If so, you get an employee back on the roster and back on the normal payroll.

But what about the times when you simply can’t accommodate their restrictions? It is quite often the case that when an employee is cleared to return to work at a lesser degree, they may not actually be capable of returning to their previous job. If the employer cannot accommodate them, does that mean the employee is ok to stop trying, and continue to draw a comp check? No. This is when the obligation to “market residual work capacity” kicks in. “Marketing residual capacity” simply means that the employee must make an effort to find a job within their restrictions. An injured worker whose doctor has declared them eligible to return to work with restrictions must make an effort to find work, and the failure to do so with a “reasonable” degree of effort may result in the temporary cessation of their wage replacement benefits.

Why would any of this matter to the employer? It comes down to the average weekly wage comp rate that makes up the wage replacement benefit under a worker’s compensation award. The weekly rate is roughly 2/3 of the average weekly wage. Because this is being done by a lawyer, I’ll use easy math. If you have an employee who has an average weekly wage of $900.00, his weekly comp rate is going to be $600.00 while he’s out on comp disability. However, if he’s returned to work with restrictions, and he finds another job that pays him $400.00 a week, the employer only has to pay the balance: the remaining $200.00 instead of the full $600.00; and if the employee fails to market any of his residual work capacity, that wage replacement can be struck entirely.

The program is designed to encourage workers to get back into the work force, and incentivize employers to want employees to get back to work, even if it isn’t with them. As an employer, your insurance carrier may even want to hire another person to come in and help the employee find new work within those restrictions. These vocational rehabilitation counselors will work with your employees and their existing restrictions to see what kind of employment they can actually find. Otherwise you may have an employee that simply clicks the first 5-10 job openings on their favorite job search site. It is in everyone’s best interest that the employee be placed back in the work force as soon as practical. It helps them regain their sense of self-sufficiency, it helps the employer save a little money on their payouts, and it helps the system as a whole move forward.

If you’ve been involved in the workers’ compensation practices and are currently dealing with the prospect of an employee who can “return to work” but you don’t quite understand what that means; or if you want to make sure that everyone is playing by the rules of the system, give us a call. Virginia Workers’ Compensation is full of fascinating nuances like the one outlined above, and each situation needs to be properly vetted by an experienced and competent hand. If you find yourself facing these issues or others related to Workers’ Compensation matters, or if you have specific questions related to this article, or if you would simply like a consultation regarding your current practices, please contact John Stacy (jstacy@setlifflaw.com) at (804) 377-1263, or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.