OHIO SUPREME COURT GRANTS NEW RIGHTS TO WORKERS COMPENSATION CLAIMANTS
by Donald B. Hordes, Esq.1
Most Ohio employers are undoubtedly aware of the prohibition against terminating employees in retaliation for their having filed a workers compensation claim. This law has been on the books for decades, the logic being that an employee should not be intimidated from filing a claim for fear that he may lose his job. However, Ohio law has never prohibited an employer from terminating an employee whose work-related injury causes him to miss so much work that the employer needs to hire a replacement to keep the business going.
That is about to change. In a radical departure from existing law, the Ohio Supreme Court, in Coolidge v. Riverdale School Board, recently ruled that a company must hold open the job of any employee injured on the job, who is off of work on temporary total disability (TTD). Such an employee can no longer be terminated for absenteeism or job abandonment.
This is bound to create a new and undue hardship for Ohio employers. They will no longer be free to fill a position vacated by employee who is off indefinitely with a work- related injury. At best, they will now be forced to resort to the hire of temporary employees. This carries with it three very significant drawbacks: (1) It is always a challenge to attract qualified employees for jobs for which there are no long-term employment prospects. (2) The company will oftentimes never recoup its investment in training a temporary employee. (3) Some jobs call for such unique talents, skills, and familiarity of the company's workings that the hire of a temporary employee is unfeasible or altogether impossible, especially in the case of a smaller business.
The Supreme Court's decision raises other troubling issues. If a worker injured on the job is deemed an "employee" while he is off on extended medical leave of absence, does that mean that he is entitled to continued health insurance coverage at the employer's expense? What about the company's obligation to continue contributions to the individual's retirement account? Does the employee continue to accrue seniority for purposes of fringe benefit entitlements? Does it matter if the employee is off work for over six months? Over one year? These and countless other unanswered questions will have to be resolved in subsequent court decisions.
The Ohio Supreme Court did recognize some legitimate concerns of employers. A company is still free to terminate an employee who does not adhere to directives to keep the company informed periodically as to the progress of his recovery. The Court was also careful to emphasize that employers are barred from terminating an employee injured on the job only where the sole basis for doing so is the employee's absenteeism. This suggests that if there exist other independent grounds for terminating the employee, the company is free to proceed with the discharge. One can envision a scenario where the employer discovers heretofore hidden evidence of the injured employee's negligence or wrongdoing during the time he is out on disability. Perhaps the temporary replacement will outperform the injured employee to such an extent that the employer will be justified in keeping the replacement and terminating the employee. Please bear in mind, however, that these are mere theories, which will have to be tested in the courts.
The Court's decision also highlights the need to document all instances of employee misconduct and substandard performance. An employee who suffers a compensable work-related injury might already be "on the bubble", so to speak. If his file has already been properly memorialized, the company might credibly argue that it has a right to terminate the employee based on his subsequent absenteeism combined with his prior past performance.
In the meantime, clients are well-advised to tread carefully in this area, and consult us before making any personnel moves concerning employees who are absent due to work-related injuries.
1Mr. Hordes has been a partner with Schwartz, Manes & Ruby since 1988, and is the Chair of the Firm's Employment Law and Litigation Department.
