Retaliatory Discharge: A Frequent Theory of Liability Against West Virginia Hospitals and Healthcare Providers

Following is a summary and guidance for West Virginia human resource managers on retaliatory discharge related claims faced by health care providers. The summary was prepared by my colleague, Ben Salango, a partner at Flaherty, Sensabaugh & Bonasso, PLLC. Ben's a member of our Health Care Practice Group and focuses on medical malpractice and employment litigation.

The West Virginia Human Rights Act prohibits employment discrimination on the basis of race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status. More frequent are claims under the West Virginia Human Rights Act against an employer for retaliation. Specifically, the Human Rights Act provides that an employer commits an unlawful discriminatory practice when the employer retaliates because the employee has opposed any practice or act forbidden by the Human Rights Act, or because he or she has filed a complaint, testified or otherwise assisted in any proceeding under the Human Rights Act. See W. Va. Code § 5-11-9(7)(c).

In order to prove a retaliation claim, an employee is generally required to prove the following: (1) the individual engaged in protected activity under the Human Rights Act; (2) the employer was aware of the protected activity; and (3) the employee was adversely affected by an employment decision following the employeeÂ’s protected activity within such period of time that the court can infer retaliatory motive.

Though there are numerous activities which are deemed "protected"” under the Act, frequently hospitals and healthcare providers are faced with claims alleging that an adverse employment action was taken against an employee because the employee filed a workers'’ compensation claim or expressed concerns over a purported safety violation. Recently, a Kanawha County jury awarded a discharged nurse more than $2 million against a hospital for allegedly terminating her employment because she complained of safety violations.

West Virginia employers have also seen an increasing number of lawsuits for violation of the Anti-Discriminatory Provisions of the West Virginia WorkersÂ’ Compensation Act. West Virginia Code § 23-5A-3 specifically prohibits an employer from terminating an injured employee while the injured employee is off work due to a compensable injury and is receiving or is eligible to receive temporary total disability benefits. There is an exception to this rule when the injured employee commits a separate dischargeable offense.

Human Resources Managers should be cautious about enforcing a policy that requires termination when an employee has not worked for a certain period of time (typically six months or a year). Often, the terminated employee institutes litigation when such policies are enforced because the employee is off work receiving temporary total disability benefits. Thus, enforcement of such a policy results in a violation of West Virginia law and potential liability against the employer.