COOLIDGE v. BICKERS

JOB PROTECTION FOR INJURED WORKERS

By Henry A. Arnett

The scenario is all too common. An employee is injured on the job and, as a result, cannot work. The employee exhausts his/her Family and Medical Leave Act time (assuming the employee qualifies for such leave) and burns all of his/her other accrued leave, but still is unable to return to work. The employer then fires the employee for not being able to work or for failing to return upon expiration of the leave of absence. Does the employee have any recourse?

For many years, most courts in Ohio generally held that the employee was out of luck; the employer was free to fire the employee for absenteeism and/or inability to work, without any legal repercussions. Then, for a brief period of time, that changed as a result of a decision by the Ohio Supreme Court. In Coolidge v. Riverdale Local School Dist. (2003), 100 Ohio St. 3d 141, the Supreme Court held that “An employee who is receiving temporary total disability 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.” This case was a major development in Ohio law that offered significant protection for all employees in the State. Unfortunately, the Coolidge decision was short-lived, and it now appears that injured workers no longer have any job security in the State of Ohio.

First, let’s look at the Coolidge case. Cheryl Coolidge was assaulted by a student at the elementary school where she taught. The injuries were severe enough for her to be placed on temporary total disability (TTD) under the worker’s compensation system. She was also entitled to “assault leave” under the terms of the collective bargaining agreement between the school and her union. When the assault leave expired after 60 days, she used her accumulated sick time, which lasted approximately four months. At that point she was placed on a leave of absence pursuant to a school board policy which provided that the board may grant uncompensated leave of up to one school year.

Before the year expired, the school board gave notice of its intent to consider termination of her teaching contract due to the exhaustion of her available leaves and continuing inability to return to work. The school board then voted, after the one year unpaid leave was up, to terminate her teaching contract, finding that her inability to work and her failure to return after the exhaustion of her leave constituted “good and just cause” for termination.

The teacher appealed to the courts, with mixed results. The common pleas court ruled that the termination was invalid because the school board gave notice of its intent to consider termination before the one year unpaid leave had expired and also because the board had acted arbitrarily in not extending the assault leave. The court of appeals reversed, upholding the termination, ruling that the board could initiate termination proceedings before the leave expired so long as its final vote to terminate was made after the uncompensated leave had expired.

The Supreme Court decided to hear the teacher’s appeal and addressed head-on the issue of whether an individual on worker’s compensation could be terminated. The Court noted that the purpose of TTD compensation is to provide the injured worker with the necessary means to subsist during a period of temporary total disability. The Court noted that, under Ohio law, an employee cannot be fired for filing a worker’s compensation claim. It would be ironic if, on the other hand, the employee could be fired for the very absenteeism and inability to work that rendered the employee eligible to file a claim and receive compensation in the first place. Accordingly, the Court held in an unanimous decision that it was against public policy to terminate an employee, who was receiving temporary total compensation, for a failure to return from an expired leave or for being unable to perform the employee’s job. Employees injured on the job could be assured that they would not lose their jobs simply because of their inability to work.

But what the Supreme Court gives, the Supreme Court can take away. And the job protection given by Coolidge was taken away by the Supreme Court four years later in the case of Bickers v. W. & S. Life Ins. Co. (2007), 116 Ohio St. 3d 351.

Shelley Bickers was injured at work in 1994. She experienced periods of inability to work as a result of her injuries, and, in 2002, her employer terminated her employment while she was receiving temporary total disability benefits related to her workers’ compensation claim. She filed a lawsuit for wrongful discharge, alleging that, while receiving temporary total disability benefits, she had been wrongfully terminated in violation of the state’s public policy and the Coolidge decision.

Bickers was not as fortunate as Coolidge. When her case made its way to the Supreme Court, five Justices of the Court (Cupp, Stratton, O’Connor, O’Donnell, and Lanzinger) backed off the Court’s holding in Coolidge, ruling that Bickers had no claim. The Court stated “we hold that an employee who is terminated from employment while receiving workers’ compensation has no common-law cause of action for wrongful discharge.” Coolidge was not completely overruled. The Court held that “Having duly considered the Coolidge opinion and the circumstances presented by Bickers, we limit Coolidge to holding that terminating a teacher for absences due to a work-related injury while the teacher is receiving workers’ compensation benefits is a termination without “good and just cause” under R.C. 3319.16.2.”

Apparently, if you are a public school teacher who has guaranteed job protection under Ohio Revised Code §3319.162, you can not be fired for being absent due to a work related injury for which you are receiving worker’s compensation benefits. But if you are not a public school teacher with guaranteed job protection under Ohio law, you have no job security and you can be terminated when you are unable to work because of a job related injury or illness.

It should be noted that Ohio has a law prohibiting an employer from retaliating against an employee for filing a worker’s compensation claim. Ohio Revised Code §4123.90 provides, “No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.” However, as noted by Justice Moyer, dissenting in Bickers, “R.C. 4123.90 does not provide a remedy to employees whose employment has been terminated for absenteeism that is directly related to the employee’s temporary total disability.”

So where do injured workers stand today? Apparently exactly where they were years ago, with no job protection and no recourse if they are terminated because they were injured at work and unable to work as a result of those injuries.