The following is a review of some major Labor and Employment Law developments from the recently concluded General Assembly Session.
Workers' Compensation Act Amended To Provide Coverage For Job-Related Carpal Tunnel Syndrome And Hearing Loss
Until March of last year, the Virginia Workers' Compensation Commission had made workers' compensation benefits available to claimants whose carpal tunnel syndrome arose as a result of job-related repetitive motion. In March 1996, however, the Supreme Court of Virginia reversed this practice and determined that job-related impairments resulting from cumulative trauma caused by repetitive motion were not compensable under the Act. While this ruling foreclosed claims by employees under the Workers' Compensation Act, it also opened employers to potentially unlimited civil liability in repetitive trauma lawsuits.
New legislation amends the Act to allow recovery of workers' compensation benefits for carpal tunnel syndrome and hearing loss under certain limited conditions. The legislation defines carpal tunnel syndrome and hearing loss as an "ordinary disease of life," which is generally not compensable. Carpal tunnel syndrome and hearing loss, however, may be treated as an occupational disease, and thus be covered by workers' compensation, if an employee establishes by clear and convincing evidence the following: the disease exists, it arose out of and in the course of employment and did not result from causes outside of the employment, and the disease is characteristic of the employment and was caused by conditions peculiar to that employment.
The inclusion of job-related carpal tunnel syndrome and hearing loss within the scope of the Virginia Workers' Compensation Act may have the effect of increasing the rates employers pay for workers' compensation insurance. More importantly, however, the amendment restricts a claimant's recovery for carpal tunnel syndrome or hearing loss to workers' compensation benefits, thus safeguarding employers from potentially unlimited tort liability.
Unemployment Compensation Benefit Increases
New legislation reduces, by $250 over a three-year period, the current base period earnings of $3,250 required to qualify for benefits. In July 1999, an otherwise eligible claimant who earns $2,500 in the highest two quarters of his base period will qualify for benefits of $50 per week. In addition, the bill increases the maximum weekly benefit by $2 per year for each of the next four years. By July 2000, maximum benefits will rise to $232 per week, up from the current $224 per week.
Pregnancy Discrimination Prohibited Under Amended Virginia Human Rights Act
On January 10, 1997, the Virginia Supreme Court determined that a female employee who was terminated following a pregnancy-related leave could go forward with a state law wrongful discharge claim against her former employer. The decision, based on the "public policy" exception to Virginia's employment-at-will doctrine allows an employee to proceed with a state law "public policy" wrongful discharge claim based on pregnancy-based gender discrimination. In Bailey v. Scott-Gallaher, Inc., the Supreme Court of Virginia concluded that the facts alleged by Ms. Bailey, if proven, could establish a "public policy" wrongful discharge claim based on her status as a "woman who is also a working mother."
The new law specifically adds pregnancy, childbirth or related medical conditions as protected classes under the Virginia Human Rights Act and opens the door for potential claims by employees who allege they were discharged or otherwise treated unfairly because of pregnancy-related discrimination. A companion law now defines all provisions in the Virginia Code relating to sex discrimination to include discrimination based upon pregnancy, childbirth or related medical conditions.