Employers and employees in Virginia have cause to celebrate over an important development that can directly affect their worker’s compensation claims costs and outcomes. More importantly, Virginia employees can now reap the benefits of innovative Return-to-Work options, such as performing transitional duty with nonprofit organizations.

The Virginia Commission issued a full board decision late last year that employers can use non-profit organizations to accommodate light duty work when an employee is recovering from a worker’s compensation injury and released to light-duty work. By affirming Deputy Commissioner Robert H. Herring, Jr’s earlier ruling, Virginia Workers’ Compensation Commission clearly supported the position that performing light duty work for non-profit organizations does not constitute “subsidized” employment, and not considered to be in a “sheltered workshop.”

In this case, ReEmployAbility secured a position for the Claimant in July 2013 at the local YMCA via its Transition2Work program. The transitional work assignment would require the Claimant to perform light duty tasks such as folding towels, wiping down machines, monitoring the gym, and handing out basketballs to members in return for their keys and membership cards. However, the Claimant filed a Motion for Protective Order and request for sanctions, alleging his employer, Safelite Group, was forcing him to accept “subsidized light-duty employment,” a mundane job that has no restorative rehabilitative value, which he asserted violated the Commission’s Guidelines for Vocational Rehabilitation.

Subsidized employment is often referred to as a “make work” position, usually mundane jobs that have no restorative rehabilitative value — such as counting paperclips. However, performing valuable community service as an option when the employer cannot provide on-site or in-house light-duty, provides productive employee benefits and helps employers retain their talent until the injured worker is capable of returning to full duty.

Virginia workers’ compensation Act encourages employers to procure employment suitable to partially incapacitated employees. (Code § 65.2-510). The unjustified refusal to accept the job offer will jeopardize the employees

Safelite pointed out that the goal of transitional employment enables employers to offer a temporary assignment utilizing a network of non-profit organization who can accommodate temporary restrictions. In turn, injured workers have the opportunity to make a positive contribution to the community, boost self- confidence and become re-acquainted with the daily routine of being engaged in the workforce while receiving a paycheck.

“Our company successfully uses Transition2Work for nonprofit transitional work assignments across the US as part of its Return to Work program. It has allowed us to provide modified duty to match workers’ restrictions that we otherwise would not be able to accommodate with our options in-house. It is a beneficial program that has helped many of our employees and we believe our personnel in Virginia should be afforded the opportunity to participate,” said Nathan Hughes, Manager of Risk and Claims, Safelite Group.

ReEmployAbility worked with employer’s counsel, providing documentation and case law from other states to support the position that the YMCA assignment offer should be considered part of the employe’s return-to-work program, and is intended to be temporary until the employer can accommodate the claimant’s work restrictions.

In this case, the Commission was clearly persuaded that asking employees to participate in community volunteer activities for transitional duty was not a sheltered workshop or part of an employer-subsidized organization. We consider this ruling a strong victory for employers and employees alike. Specialty Return-to-Work programs utilizing non-profit transitional assignments help employers retain talent and allow the injured worker to remain connected to the workplace while providing the necessary time to recover from a work-related injury.



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This information is made available for educational purposes only and is not intended to constitute legal advice.