Marketing in the Time of COVID-19

In the wake of the COVID-19 pandemic, the labor market is continually evolving, possibly impacting workers’ compensation claims. We have received inquiries regarding the pandemic’s effect on marketing requirements, due to the temporary shuttering of certain aspects of our economy.

While the CARES (Coronavirus Aid, Relief, and Economic Security”) Act has effectively waived the requirement that individuals be actively seeking work in order to qualify for unemployment benefits, no similar directive has been issued by the Virginia Workers’ Compensation Commission. Thus, partially-disabled claimants continue to have a duty to make reasonable, good-faith efforts to market their residual capacity in order to qualify for indemnity benefits under the Virginia Workers’ Compensation Act. But, what exactly does this look like in the context of statewide “Stay-At-Home” orders and closure of non-essential business?

Generally speaking, the Commission looks to the specific facts and circumstances of each case when evaluating whether a claimant has put forth a reasonable effort to market his residual work capacity. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 359 S.E.2d 98 (1987). The Commission evaluates any number of factors, such as:

1. The nature and extent of the claimant’s restrictions;
2. The claimant’s training, age, experience, and education;
3. The nature and extent of the claimant’s job search;
4. The claimant’s intent in conducting his job search;
5. The availability of jobs in the area suitable for the claimant, considering the claimant’s restrictions; and
6. Any other matter affecting the claimant’s capacity to find suitable employment.

National Linen Serv. v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31 (1989). While this analysis is undoubtedly subjective, a general rule of thumb is that a claimant must look for three to five jobs per week, in-person and via other means, within their skill set and restrictions with employers that are hiring.

We expect that at this time, these determinations will hinge largely upon the fifth and sixth factors identified above: the availability of jobs in the area suitable to the claimant’s
restrictions and any other matter affecting the claimant’s capacity to find suitable employment.

Under current government guidelines and restrictions, it is true that many businesses are closed. However, many businesses or workplaces remain open due to the essential nature of the services/goods provided, or due to the business’s ability to operate remotely. Many employers are actively hiring during this time, transitioning to telephone and video conference interviewing to assess potential hires. The availability of telework positions continues to expand, as businesses recognize the value and feasibility of a telework option. Further, while the Governor has restricted non-essential travel during this time, travel to work or for the purposes of securing work would properly be characterized as essential travel. This restriction on travel does not relieve claimants of their duty to market.

As a result, partially-disabled claimants certainly remain obligated to continually market their work capacity as they were prior to Governor Northam’s emergency declaration. We do anticipate, though, that the Commission will be more lenient in its expectations for marketing, considering the limitations placed on partially-disabled claimants due to the realities of the pandemic and resulting government restrictions. Notwithstanding this, it is important that while evaluating indemnity claims during these uncertain times, marketing evidence is carefully scrutinized to ensure that the claimant continues to comply with the duty to market.

Ford Richardson continues to monitor developments in the law in this area. If you have questions or need assistance with these matters, please contact Ford Richardson.

Ford Richardson is a full-service law firm with headquarters located in Richmond’s financial district and satellite offices in Southwest Virginia, Northern Virginia and Hampton Roads.

Our commitment to our clients is simple: offer top-tier clear legal solutions that allow our clients to excel in their business.

We are privileged to give back to our community and believe it is our responsibility to do so. Our attorneys and support staff serve as leaders and volunteers to a wide array of civic and charitable organizations.

Posted In: E-Blast