VA Workers Compensation - Employee Eligibility

| March 01, 2017

Workers’ compensation is a system of no-fault insurance that provides monetary and medical benefits to employees or their survivors for work-related injuries, diseases and deaths. Workers' compensation is governed by state law.

The Virginia Workers' Compensation Act (WCA) outlines eligibility requirements for employees. The Virginia Workers’ Compensation Commission (Commission) administers the state workers' compensation system and resolves any disputes regarding whether a specific individual is eligible for benefits.


The WCA requires all employers in the state to provide workers' compensation coverage if they have three or more employees (part-time or full-time) in regular service in the same business. Coverage requirements also apply to all operators of underground coal mines regardless of the number of employees.

The WCA’s definition of a covered employee includes every person “in the service of another under any contract of hire or apprenticeship,” regardless of whether the employment is legal. Employment may be expressed or implied.

The WCA specifically includes the following as covered employees:

  • Aliens;
  • Minors;
  • Apprentices and trainees;
  • Executive officers of corporations; and
  • Managers of limited liability companies (LLCs).


Along with workers whose employers (other than underground coal mine operators) have fewer than three employees, the following are specifically excluded from the WCA’s definition of an employee for coverage purposes:

  • Casual employees, defined as those whose employment is not in the usual course of trade, business, profession or occupation of the employer;
  • Licensed real estate salespeople and brokers;
  • Taxicab or executive sedan drivers who are excluded from taxation under the federal Unemployment Tax Act;
  • Domestic servants;
  • Farm and horticultural laborers (unless the employer regularly employs three or more on a full-time basis);
  • Certain railroad workers and truck drivers;
  • Workers who are covered under federal workers' compensation laws;
  • Non-compensated employees and directors of nonprofit corporations or property owners’ associations;
  • Certain sports officials; and
  • Independent contractors.


Under the WCA, an employee’s injury is not compensable if it results from the employee’s:

  • Voluntary participation in an employer-sponsored, off-duty recreational activity that it is not part of the employee’s work duties;
  • Voluntary use of a motor vehicle provided by a motor vehicle dealer that is used for commuting to and from work or for non-work activity;
  • Willful misconduct;
  • Intentional self-infliction of injury;
  • Attempt to injure another;
  • Intoxication;
  • Willful failure or refusal to use a safety appliance or perform a duty required by statute;
  • Willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee; or
  • Use of a non-prescribed controlled substance.


The WCA sets additional expectations and responsibilities for employees who make workers' compensation claims. Failing to satisfy these may cause an individual to lose benefits, either in whole or in part. Among these duties, employees must:

  • Inform a supervisor or manager of any work-related condition immediately or as soon as reasonable and practicable;
  • Provide written notice of a work-related condition to the employer:
  • For accidental injuries, the written notice is due within 30 days of the accident;
  • For occupational diseases, written notice is due within 60 days after a medical provider first communicates the diagnosis of the disease to the employee;
  • Accept all medical treatment and vocational services provided by the employer pursuant to the WCA;
  • Submit to medical examinations upon a request made by the employer or the Commission;
  • While receiving benefits, immediately report to the employer (or insurance carrier if applicable), any incarcerations, returns to work, increases in earnings, remarriages, changes in status as a full-time student and address changes.
  • Accept any offers of employment suitable to their capacity from the employer; and

File a claim for benefits within two years after an accident or after first receiving a diagnosis of an occupational disease.


Contact Clarke & Sampson today for your workers compensation questions 703-683-6601

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