• Ohio Supreme Court Prohibits Discharging Employee For Absences When Receiving Temporary Total Disability Benefits During Workers' Compensation Leave
  • December 23, 2003 | Author: Paul D. Dorger
  • Law Firm: Keating Muething & Klekamp PLL - Cincinnati Office
  • The Ohio Supreme Court recently decided that an employee who was receiving temporary total disability (TTD) benefits may not be discharged solely on the basis of absenteeism or inability to work when directly related to allowed conditions in a workers' compensation injury.

    In this decision, the employee had exhausted all available options for leave, including accumulated sick leave, a period of paid disability leave, and uncompensated leave "not to exceed one year." The employee argued that the non-compensated leave policy should not apply because she had been receiving TTD benefits due to a work related injury. The Supreme Court agreed with the employee. According to the Supreme Court, "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 act, but also to whatever period of absence from work is deemed medically necessary to complete their recovery or stabilize their injuries."

    The Ohio Supreme Court also decided that an employer may not discharge an employee for failing to complete leave of absence forms or for failing to notify the company about the length of the absence when the employee is receiving TTD. Where the employer is on notice of the work related injury and the cause of the employee's continued absence, the employer may not discharge the employee for failing to complete required leave of absence forms.

    The Ohio Supreme Court's decision does not require the continuation of any employee benefits. Employees absent due to work related injuries still should be treated the same as all other employees for the continuation of employee benefits. For example, an employee on a workers' compensation leave is entitled to the same continuation of health care coverage during that portion of the leave covered by the Family Medical Leave Act. After the FMLA leave expires, the employee has the same rights to continued coverage as all other employees.

    Practical Effect On Leave Of Absence Policies
    Maximum leave of absence policies are a permissible and useful way to terminate employment of employees who are out on an indefinite leave. Two exceptions, however, currently exist in the application of maximum leave of absence policies. The Americans With Disabilities Act (ADA) requires an employer to consider whether a definite amount of additional leave beyond the maximum leave of absence period is necessary as a reasonable accommodation for a disabled employee. The new Ohio Supreme Court decision prohibits terminating the employment of an employee who continues to receive TTD benefits.

    Additionally, employers may not penalize employees who accumulate points or other penalties under absenteeism policies for worked related injuries where employees are receiving TTD benefits.

    Employers who have maximum leave of absence policies must consider the effect of this decision on their policies. Employers should consider the following options:

    • Revise leave of absence policy to account for ADA and TTD exceptions. Rather than provide a detailed explanation of the exceptions, the policy may simply state that no leave of absence may exceed a specified length of time "except where required by law."

    • Draft a separate leave of absence policy for work related injuries. The policy might provide that when an employee no longer is eligible for TTD benefits, the employee must return to work or employment will be terminated if employee is ineligible for any other leave.

    • Keep maximum leave of absence policies unchanged. However, supervisors must abide by the ADA and TTD exceptions when applying the policy.

    While employers are not required to retain employees as long as a workers' compensation claim remains open, leave must be extended while TTD payments continue. Under Ohio workers' compensation statute, an employee is entitled to TTD benefits until one of the following occurs:

    • employee is able to return to former position of employment,
    • employee reaches maximum medical improvement,
    • employee refuses an offer of light duty work,
    • employee returns to other suitable employment or otherwise demonstrates an ability to engage in activity inconsistent with TTD status, or
    • employee voluntarily retires or abandons position, including incarceration.

    Employers should not discontinue TTD benefits until a decision is reached by the Industrial Commission, unless the employee returns to work or unless uncontested evidence shows that the employee has reached maximum medical improvement.