Ohio Revised Code section 4123.90 prohibits employers from taking any adverse action against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act. This statute is unique in that is has a two-stage statute of limitations:
- Within 90 days “immediately following” the adverse action, the employer must receive written notice of a claimed violation from the employee; and
- The lawsuit must be filed within 180 days “immediately following” the adverse action.
Both steps are required, and an employee’s failure to meet either deadline is fatal to a retaliation claim.
In Lawrence v. City of Youngstown (2/25/11), the Mahoning County Court of Appeals took up the issue of the meaning of “immediately following” in regards to the 90 and 180 day requirements. The court recognized an even split among Ohio’s appellate courts. Half of the courts that have considered the issue concluded that the 90 and 180 day requirements do not begin to run until the employee receives notice of the termination or other adverse action. The other half concluded that the effective date of the termination or other adverse action controls.
The Lawrence court sided with the latter, concluding:
This language clearly references the date of discharge, not notice of discharge. If the General Assembly had intended the time periods to begin to run upon notice of discharge, the statute could have easily been written to indicate as such. Accordingly, we find that the time limits begin to run on the effective date of discharge.
Last week, the Ohio Supreme Court agreed to hear this case [pdf] and resolve the split. Ohio employers should expect clarity on this important issue in the next 12 – 15 months.