In these challenging economic times, many Vermonters have to work more than one job just to make ends meet. Having two–or more–jobs not only increases a person’s stress levels and fatigue. It makes them even more susceptible to an on-the-job injury that can threaten their livelihood.
So how doesVermont workers’ compensation law apply to people working two or more jobs? The first consideration is where the injury took place. For example, say you work a full-time 40-hour workweek at Company A but also have a 10-hour weekend job with Company B. If you suffer a work-related injury while on the clock for Company B, then its workers’ compensation insurance carrier is responsible for paying your medical, wage replacement, and disability benefits. The fact that you spend most of your time working at Company A is irrelevant to who is responsible for your workers’ compensation coverage.
Average Weekly Wages and Disability Benefits
That said, when it comes to determining the amount of your disability benefits–the money you receive while you are unable to return to work–the responsible workers’ compensation insurer has to consider your wages from all jobs if you are covered by workers’ compensation insurance at each job.
Under Vermont law, workers’ compensation provides temporary disability benefits as a form of wage replacement until the worker either resumes their pre-injury work schedule or reaches a state of “maximum medical improvement.” These disability benefits generally equal two-thirds of the injured worker’s “average weekly wages.”
In Vermont, average weekly wages are based on the “average weekly earnings of the worker during the 26 weeks preceding an injury.” To give a simple example, if Sam earned $900 per week at her job during the six months before she suffered a work-related injury, then $000 would be her average weekly wages. Assuming Sam’s injury kept her from returning to work at all for several weeks, she would then receive two-thirds of her average weekly wages, or $600 per week, in temporary disability benefits.
Now let’s assume Sam had two different jobs covered by workers’ compensation. She actively worked for both employers when she was injured at one of her jobs. As previously noted, the workers’ compensation insurance carrier for the employer where the injury occurred would be responsible for paying her workers’ compensation benefits. Assuming Sam was covered by workers comp at both jobs, the insurer would have to include wages from both of Sam’s jobs from the 26 weeks before the injury when determining Sam’s average weekly wages for purposes of her disability benefits. On the other hand, if Sam’s second job was not covered by workers comp (like if she worked for herself or was an independent contractor), then the second job’s wages would not be included.
Only Your Jobs at the Time of Injury (or Disability) Count
In some cases, however, a worker may suffer a “disability” for purposes of workers’ compensation some time after the original work-related accident or injury took place. Suppose you change jobs–or take on additional jobs–after your initial injury but before you are found disabled. How can that affect the calculation of your average weekly wages?
The Vermont Supreme Court addressed that scenario earlier this year. The case before the Court, Hill v. Agri-Mark, Inc., actually involved a man who worked for three employers. The employee worked for Agri-Mark, Inc., in March 2021, at which time he suffered a hernia that was later determined to be a work-related injury. Shortly after the original injury, the employee left Agri-Mark and went to work for a second employer, Meeting House Furniture Restoration, where he worked until September 2021. In July 2021, he took a job with a third employer, Black Back Pub, which continued until October 2021.
In October 2021, the employee required surgery to address the work-related hernia injury. From that point forward, the employee was “disabled” for purposes of workers’ compensation as he could not return to his jobs. The employee filed a workers’ compensation claim with Agri-Mark’s insurer. Again, even though the employee no longer worked for Agri-Mark, its insurer was still responsible for paying the employee’s workers’ compensation benefits as that was where the injury causing his disability occurred.
Agri-Mark agreed it was responsible for paying disability benefits to the employee. In this context, the employee’s average weekly wages was based on what he earned in the 26 weeks leading to the date of his disability–the surgery in October 2021–rather than the date of his original injury. This is where a legal dispute arose. Agri-Mark argued the 26-week “lookback” period only covered the employee’s work for Black Back Pub, since that was the only employer he actively worked for when he went in for surgery. The employee argued that his time at Meeting House, which fell within the 26-week period, should count as well.
Unfortunately, Vermont law was on the employer’s side. The Vermont Department of Labor has a rule in place to address this exact situation. Essentially, the rule states that when a worker is “regularly employed by two or more employers … at the time of his or her disability,” the average weekly wage is based on the combined earnings from all employers. The critical language here is “at the time of” disability. In this case, the employee no longer worked at Meeting House when he was found disabled, so his wages from that job did not count towards his disability benefits.
The employee argued the Department of Labor’s rule was itself illegal, as it exceeded the Commissioner’s rule-making authority. In a January 2025 opinion, the Vermont Supreme Court unanimously rejected that argument. The Court said the plain language of the workers’ compensation statute only required the Department “to include wages from concurrent employers only if the claimant had concurrent employment at the time of injury,” or in this case, the time of disability.
Contact a Vermont Workers’ Compensation Lawyer Today
Workers’ compensation cases can often raise complex factual questions that can create roadblocks to you receiving timely benefits. By working with an experiencedVermont workers’ compensation lawyer, you can help protect your rights under the law. Contact Larson & Gallivan Law today to schedule a free initial consultation.
