Virginia Workers' Compensation - following the rules…

The rules are the rules…

Virginia Workers’ Compensation is seen by many as favoring workers over employers. In many instances, it seems to fly in the face of conventional wisdom when it permits employees who may not have been exercising reasonable safety precautions to still recover benefits. In such situations, the employer will need to take a good long look at itself and its practices.

In Virginia Comp, an employer can actually use an employee’s bad behavior as a possible defense if it can reasonably and fairly be categorized into one of 6 scenarios which will preclude a bad actor from recovering benefits. Virginia Code 65.2-306 sets out when compensation will not be allowed for an injury or even a death. If an employer can prove that the employee’s injury was related to his own willful misconduct, willful breach of any reasonable rule or regulation adopted by the employer (that the employee was made aware of), or that the employee was intoxicated, then there might be an absolute bar to benefits. Of particular importance here is your own safety practices and procedures. Safety rules are there to keep employees safe. It isn’t a difficult concept. But the rules in and of themselves are not enough. You must enforce those rules. If you only enforce rules when there is a comp claim filed, it isn’t a rule, it’s a reaction. A rule is enforced. If you have a rule to wear a seatbelt while in a moving vehicle or while in a work vehicle, enforce it. If you have a rule regarding PPE, enforce it. No hard hat today? No work today. No work, no pay. Hiking boots instead of steel toe? Thanks, but no. Camo jacket on top of the high-vis vest on a cold day? No way. Each of these rules and practices have very real applications, just as forgoing them can have severe implications and can legitimately result in serious injury.

So, what can we do about these rules? Again, the key here is consistency. Consistently following rules will consistently reduce your work-related injuries. Consistently reducing work related injuries will consistently improve your over-all performance, productivity, and bottom line. Make reiterating these rules part of every team meeting before a shift, or shift change. Place reminders about these rules when entering work zones. Include a copy in your employee handbook if you have one. If these rules successfully become another part of your work culture, then most problems will abate themselves long before they have a chance to arrive at my desk. However, if these rules do become part of your everyday practice and someone is injured in a manner that strongly suggests that those rules weren’t being followed, you may be able to protect yourself from an expensive mistake.

Accidents will still happen, to be sure. But having safety rules and enforcing those rules can help greatly diminish the impact those accidents can have. Enforcing these rules can mean a great many things, from checking back to make sure three points of contact is the norm for anyone entering or exiting a piece of equipment; making sure that seatbelts are worn, even if it means spot checking interior facing safety cameras. The rules are the rules. They should be followed, and if they are not, then an appropriate sanction should be ready. Will that be a verbal warning? Will it be a formal write-up? Termination?

If you find yourself in a position where the rules are being followed… close enough? Or maybe you’ve mentioned a handful of rules, and every employee received a copy of these rules in their handbook, which I’m *certain* they crack open their employee handbook and skim through every Saturday. If you caught yourself smirking, perhaps you may want to give us a call and we’ll see if we can put you in a better position to state with confidence that your employees know and follow those rules.

If you or your business makes use of an employee handbook as your rulebook, please give us a call and let us help you do so in such a manner that helps you get the full benefit of your safety rules and practices. If you don’t use any sort of handbook or rulebook, then please give us a call and let us help you decide if that needs to change.

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.