Thursday, December 20, 2007

Ohio Supreme Court holds that no wrongful discharge claim exists for employee terminated while on workers' comp leave

Four months ago, I reported on Klopfenstein v. NK Parts Industries, Inc., an Ohio appellate decision which held that Coolidge v. Riverdale Local School Dist. created an independent public policy exception to the employment at-will doctrine. Klopfenstein stood in direct contrast to other Ohio appellate districts, such as Cuyahoga County in Brooks v. Qualchoice, which held that Coolidge does not create a new public policy exception to the employment at-will doctrine, but instead illustrates conduct that is retaliatory under R.C. 4123.90 (the workers' comp anti-retaliation provision). At that time, I predicted that given the conflict, the Ohio Supreme Court would soon be asked to revisit this issue, and that it should reject the Klopfenstein line of cases:

Klopfenstein will not be the last word on this issue. Whether in an appeal from that case, or some future case, the Ohio Supreme Court will be called upon to clarify its Coolidge holding and definitively state the proper statute of limitations. In anticipation of that future battle, let me suggest that Klopfenstein was wrongly decided. R.C. 4123.90 states: "No employer shall discharge ... any employee because the employee filed a claim ... under the workers’ compensation act for an injury ... which occurred in the course of and arising out of his employment with that employer." If an employee is terminated because of workers' comp-related absences, that employee is being terminated because of the claim. Thus, the termination falls squarely within the coverage of R.C. 4123.90. It is the job of the legislature, and not the courts, to expand the statute of limitations for Coolidge claims if it sees fit to do so.

Today, the Ohio Supreme Court has proved me to be both prescient and correct. In Bickers v. W. & S. Life Ins. Co., the Court has held: "An employee who is terminated from employment while receiving workers' compensation has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers' Compensation Act." In so ruling, it greatly limited the reach of its 2003 Coolidge decision, limiting Coolidge to considerations of "good and just cause" for termination under R.C. 3319.16 (which involves terminations of contracts by boards of education). The Court explained its rationale for limiting employees to a statutory claim under the workers' comp retaliation provision:

The policy choice between permitting and prohibiting the discharge from employment of an employee who has been injured at work is a difficult one, as it inevitably creates a burden of some degree upon either the employer or the employee.

Should the policy choice be to deny employers the exercise of their employment-at-will prerogative and require them to hold open the jobs of injured employees for indefinite periods of time, then employers will be burdened with employees unable to perform the work for which they were hired and an inability to obtain permanent replacements. This would be particularly onerous on small employers with few employees, who lack the ability to shift the duties of an injured employee to other employees.

Should the policy choice be to permit an employer to terminate a worker who is injured on the job and cannot work as a result, then the worker suffers not only the burden of being injured but also the burden of unemployment at a time when seeking a new position is made more difficult by the injury.

In addressing this difficult policy issue, which lacks wholly satisfactory solutions, the General Assembly chose to proscribe retaliatory discharges only. Employers may not retaliate against employees for pursuing a workers’ compensation claim. R.C. 4123.90. It is within the prerogative and authority of the General Assembly to make this choice when determining policy in the workers' compensation arena and in balancing, in that forum, employers' and employees' competing interests. We may not override this choice and superimpose a common-law, public-policy tort remedy on this wholly statutory system.

In holding the employee to the statutory remedy, the Court continued its string of recent opinions limiting the scope of Ohio's wrongful discharge tort (see Ohio Supreme Court rejects common law wrongful discharge age discrimination claim). What is becoming more and more clear under Ohio law is that if a statute provides a remedy that an aggrieved employee can take advantage of, that employee will not have a valid common law wrongful discharge claim.

The Bickers opinion is also interesting for the debate between the majority and the minority on the actual holding of Coolidge and whether the Court is merely clarifying its prior holding, or outright reversing binding precedent. That debate, while interesting from a jurisprudential standpoint, is ultimately immaterial to the practical impact of Bickers for companies: employers no longer have to hold jobs open in perpetuity for employees who are off work because of a workers' comp injury. The FMLA and the ADA, where applicable, will still have something to say about the duration of a medical leave of absence (see ADA may require leaves of absence beyond FMLA mandates), but at least as to the workers' comp law employees are limited to their statutory remedy and the 180-day statute of limitations that goes along with it.