Supreme Court Holds That Employers May Not Terminate Employees While They Are Off Work Due To A Work-Related Injury
By David T. Andrews
For years, Ohio courts have held that an employer has a right to apply its leave of absence policies to all employees, whether the employee was injured away from work or at work. In other words, if an employee was injured at work and exhausted the company’s leave of absence policy, it was not a violation of Ohio’s workers’ compensation laws to terminate that employee if the employee was still unable to return to work at the end of the leave of absence.
A new unanimous Ohio Supreme Court ruling issued October 22, 2003 now makes it unlawful to do so. The court held that “employees who are temporarily and totally disabled as a result of their work-related injuries have a right not only to the compensation provided in the [Workers’ Compensation] Act, but also to whatever period of absence from work is deemed medically necessary to complete their recovery or stabilize their injuries.” Thus, it is now unlawful to terminate an employee who is receiving temporary total disability benefits under Ohio’s workers’ compensation system. This raises some interesting new questions for employers.
Does this mean that employees who are injured at work receive preferential treatment over employees who have non-work-related injuries or illnesses?
Yes. The court’s ruling clearly says that leave of absence policies that apply to all other employees do not apply to employees who are injured at work, so long as the employee is collecting temporary total disability benefits.
Should I continue to apply the Family and Medical Leave Act to workers’ compensation absences?
Yes. Employers should continue to count days missed for work-related serious health conditions for purposes of the Family and Medical Leave Act. However, once the 12 weeks of FMLA has been exhausted, a company may not terminate the employee’s employment if the employee is still receiving temporary total disability compensation.
Under this ruling, what incentive does an employee have to return quickly from an injury?
Very little. Under the court’s decision, so long as a treating physician and the Bureau of Workers’ Compensation continue to allow the employee to receive temporary total compensation, the employee’s job must be protected. Now, more than ever, aggressive medical and claims management must be emphasized to ensure that the employee recovers as quickly as possible.
Can an employer still penalize an employee if they fail to complete forms for a leave of absence or fail to notify the employer as to the length of the leave of absence?
No. The court said that so long as the employer is on notice of the employee’s condition and status “it would be patently illogical to hold that the temporarily and totally disabled employee does not need the employer’s permission to be absent from work, only then to turn around and allow the employee to be fired for failing to ask for such permission.”
This decision is a sharp departure from numerous decisions of other courts in this state. However, it is now the law of the land. We strongly encourage you to review any potential discharge of a workers’ compensation claimant with Lynn Schonberg, David Andrews, or Ryan Neumeyer of Ross, Brittain & Schonberg.