Workers' Compensation Leave Still a Mystery in Ohio

By James W. Ellis
Kastner Westner & Wilkins LLC
The KWWLaborLaw.Communicator
Vol 7, No. 4 - Fall 2006

Ohio employers continue to struggle with the Coolidge v. Riverdale Local School District decision issued by the Supreme Court of Ohio in the fall of 2003.

Employers know that they cannot terminate an employee who is receiving temporary total disability (TTD) benefits solely due to absenteeism when the absence is due to a work-related injury. Coolidge left unanswered many questions about how an employer should treat other forms of available leave and benefit continuation during such leave.

The cases that have addressed leave issues since Coolidge have come from state and federal courts. A recent federal court decision is important for its particular interpretation of Coolidge. Woody v. Sears, Roebuck & Co. In Woody, the employee was injured on January 4, 2002 while working as a service technician. Due to a neck injury, the employee received temporary total disability benefits for approximately six months, returned to work for three months, and then went back on TTD benefits for another three months. The TTD benefits ultimately were terminated on January 27, 2003, but the employee was unable to return to work at that time. On March 18, 2003, the employer informed the employee that his employment would be terminated on April 19, 2003, pursuant to its Workers' Compensation Leave of Absence Policy, due to his inability to return to work and exhaustion of all available leave.

The employee sued, alleging that his termination was in violation of Ohio public policy under Coolidge.

The employer asserted that it had not violated Coolidge, because the employee was not receiving TTD benefits at the time he was discharged. Moreover, the employer cited an Ohio appellate court case that specifically held that an employee claiming a violation of Coolidge must be receiving TTD benefits at the time of his or her termination. However, the federal court disagreed with the employer's arguments, finding that the employer had violated the Ohio public policy defined in Coolidge.

In its holding, the federal court criticizing the Ohio appellate court case, stating that it was an inaccurate interpretation of Coolidge. Instead, the federal court held that Coolidge prohibits employees from being "penalized" for a work related injury. "Penalized" was not defined, but the court specifically held that plaintiff's termination operated as a penalty against the employee for taking nine months of TTD benefits.

This decision clearly calls into question the validity of otherwise facially neutral workers' compensation leave of absence policies. Moreover, it suggests that periods of TTD may not be counted against other available leave without being deemed to have penalized the employee receiving TTD.

The only real consistency in this area has been inconsistency. Courts, both state and federal, have seldom agreed on what public policy has been established by Coolidge or how that policy should be applied. Until the Supreme Court of Ohio revisits the issue and further outlines the parameters of workers' compensation leave requirements, employers should carefully examine how they administer workers' compensation leave and seek legal counsel before terminating an employee from leave


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