Senate Bill No. 455
(By Senator Grubb)
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[Introduced February 19, 1996; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section three, article five-a, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the authority of
courts to award litigation costs to prevailing parties in
actions involving unlawful discriminatory practices in
workers' compensation cases.
Be it enacted by the Legislature of West Virginia:
That section three, article five-a, chapter twenty-three of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE FIVE-A. DISCRIMINATORY PRACTICES.
§23-5A-3. Termination of injured employee prohibited; re-
employment of injured employees.
(a) It shall be a discriminatory practice within the meaning
of section one of this article to terminate an injured employee
while the injured employee is off work due to a compensable injury
within the meaning of article four of this chapter and is receiving
or is eligible to receive temporary total disability benefits,
unless the injured employee has committed a separate dischargeable
offense. A separate dischargeable offense shall mean misconduct by
the injured employee wholly unrelated to the injury or the absence
from work resulting from the injury. 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.
(b) It shall be a discriminatory practice within the meaning
of section one of this article for an employer to fail to reinstate
an employee who has sustained a 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 duties of such
position. If the former position is not available, the employee
shall be reinstated to another comparable position which is
available and which the employee is capable of performing. A
comparable position for the purposes of this section shall mean a position which is comparable as to wages, working conditions and,
to the extent reasonably practicable, duties to the position held
at the time of injury. A written statement from a duly licensed
physician that the physician approves the injured employee's return
to his or her regular employment shall be prima facie evidence that
the worker is able to perform such duties. In the event that
neither the former position nor a comparable position is available,
the employee shall have a right to preferential recall to any job
which the injured employee is capable of performing which becomes
open after the injured employee notifies the employer that he or
she desired reinstatement. Said right of preferential recall shall
be in effect for one year from the day the injured employee
notifies the employer that he or she desires reinstatement:
Provided, That the employee provides to the employer a current
mailing address during this one year period.
(c) Any civil action brought under this section shall be
subject to the seniority provisions of a valid and applicable
collective bargaining agreement, or arbitrator's decision
thereunder, or to any court or administrative order applying
specifically to the injured employee's employer, and shall further
be subject to any applicable federal statute or regulation. In
actions brought under this section, the court in its discretion may award all or a portion of the costs of litigation, including
reasonable attorney fees and witness fees, to a prevailing
complainant.
(d) Nothing in this section shall affect the eligibility of
the injured employee to workers' compensation benefits under this
chapter.
NOTE: The purpose of this bill is to allow courts the
discretion to award litigation costs to prevailing complainants in
workers' compensation cases involving discriminatory practices,
thereby making the treatment of such practices under the workers'
compensation law consistent with the handling of discriminatory
practices under the state's human rights act.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.