June 29, 2005

Rhonda Farr
4305 17th Ave.
Parkersburg, WV 26101

Dear Ms. Farr:

I am in receipt of your request for an interpretation regarding West Virginia Code §18A-4-8g and 23-5A-3.

You explain that a cook for a county board of education was injured at work on October 21, 2002. The employee received workers' compensation benefits and was found to have a thirty-two percent permanent partial disability. The employee could not return to work as a cook, but was able to return to work as a classroom aide on October 23, 2003. The employee requested that the county provide her with training as a paraprofessional to obtain additional job security, but the county denied that request. Subsequently, in 2005, the employee was notified that her employment as an aide would be terminated via a reduction in force.

You ask whether West Virginia Code §18A-4-8g and 23-5A-3 have any bearing on the above circumstance. As to the reduction in force, the answer is yes. West Virginia Code 18A-4-8g(b) states:

For all purposes including the filling of vacancies and reduction in force, seniority shall be accumulated within particular classification categories of employment as those classification categories are referred to in section eight-e of this article: Provided, That when implementing a reduction in force, an employee with the least seniority within a particular classification category shall be properly released and placed on the preferred recall list. The particular classification title held by an employee within the classification category shall not be taken into consideration when implementing a reduction in force.

Additionally, Code 18A-4-8g(a) provides that "[s]eniority shall not cease to accumulate when an employee is absent without pay as authorized by the county board or the absence is due to illness or other reasons over which the employee has no control as authorized by the county board." Thus, an employee off work and receiving workers compensation shall not cease to accumulate seniority. See Blankenship v. Mingo County Board of Education, Docket No, 97-29-386 (February 6, 1998).

Code 18A-4-8g would not, however, have any bearing on the county's decision regarding paraprofessional training for the injured employee.

Finally, West Virginia Code 23-5A-3 states, in pertinent part:

(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.

While this code section does provide certain job protections for employees who are off work due to compensable injuries, there is no language that would prohibit the county from properly terminating an employee pursuant to a legitimate reduction in force if she is the least senior employee in the classification to be reduced. This is true even if the employee previously has been off work due to a compensable injury. See Rule v. Department of Health an Human Resources, Docket No. 00-HHR-080 (May 24, 2000).

Hoping that I have been of service, I am
Sincerely,

/s/

David Stewart
State Superintendent of Schools

DS/hld