On December 20, 2007, the Ohio Supreme Court drastically reduced an employees’ remedy for wrongful discharge in violation of public policy. Prior to this time, the majority of Ohio’s appellate court’s have interpreted the Ohio Supreme Court’s prior decision of Coolidge v. Riverdale Local School District as prohibiting the discharge of an employee who was receiving temporary total disability benefits through the worker’s compensation system. In Bickers v. Western & Southern Life Insurance Company, the Ohio Supreme Court found that the appellate courts had applied the Coolidge holding too broadly and held that Coolidge should be limited to determining whether a school district has “good and just cause” for terminating a contract for employment with a teacher.
In Coolidge, Ms. Coolidge filed suit against her former employer asserting that she was wrongfully discharged in violation of Ohio public policy. Since Ms. Coolidge was employed under a contract with the school district, R.C. § 3319.16 applies. This provision of Ohio’s Revised Code prohibits termination of a teacher without “good and just cause.” When determining what action constitutes “good and just cause,” the Coolidge Court looked to the public policy protections embedded within the anti- retaliation statute of the Workers’ Compensation Act and held “that an employee who is receiving TTD compensation pursuant to R.C. 4123.56 may not be discharged solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition.”
Ms. Bickers, an at-will employee at Western & Southern, was terminated while she was receiving temporary total disability benefits through the workers’ compensation system. She filed suit against Western & Southern, alleging that she was terminated in violation of the public policy expounded within Coolidge. The Ohio Supreme Court revisited its Coolidge decision and found that Coolidge should be limited to determining whether a termination comports with R.C. 3319.16. The Supreme Court then held that the anti- retaliation statute of the Workers’ Compensation Act, R.C. § 4123.90, is the sole remedy for an at-will employee terminated from employment while receiving workers’ compensation benefits.
There is a substantial difference between a public policy claim and an anti-retaliation claim filed under R.C. § 4123.90. Numerous appellate courts had interpreted Coolidge as prohibiting the termination of an employee who was receiving temporary total disability benefits. However, as acknowledged by the Bickers’ dissent, R.C. § 4123.90 does not provide a remedy if an employee is terminated due to “absenteeism that is directly related to the employee’s temporary total disability.”
In conclusion, an employer is now free to terminate an employee who is receiving temporary total benefits after the employee has exhausted all available leave under the FMLA as long as the termination is not in retaliation for the employee’s participation in a workers’ compensation claim. In order to avoid a claim for retaliation, you must ensure that all employees with occupational injuries receiving benefits through the workers’ compensation system are treated the same as employees with non- occupational injuries.
For a copy of this opinion or to discuss the impact of the decision, please feel free to contact a member of our Employment Practices Group.