One of the first questions that a workers’ compensation attorney is asked by a new client is whether the employer can terminate the injured worker following the work injury. This is a complex area of workers’ compensation law and employment law, but the answer in most situations is YES.
The primary purpose of workers’ compensation law is to provide disability compensation and medical coverage for work-related injuries and disabilities. The Ohio BWC and Industrial Commission do not have jurisdiction over termination cases. The workers’ compensation law may provide disability compensation following a termination, but it will not protect an injured workers’ job. For example, the Industrial Commission has no power to award damages for a wrongful termination.
What is the most common reason for termination after a work-related injury?
The most common reason for job termination that I see in my workers’ compensation practice is the injured worker’s inability to return to work due to his/her injury. In such cases, especially when the injured worker will not be returning to work anytime soon, the employer must often replace the injured worker with a new employee. The employer often has no choice. Many employers have a “blind termination” policy which require automatic termination after the employee is off work for a certain predetermined number of days, typically 90 to 180 days, regardless of the reason for the absence from work. These policies are legal in Ohio, even in the context of a workers’ compensation claim.
Termination on the basis of “voluntary abandonment” of employment.
The Supreme Court of Ohio has created a legal defense to the payment of disability compensation referred to as “voluntary abandonment.” For example, if an injured worker fails a drug test, he/she may be deemed to have voluntarily broken a work rule, and when he/she is terminated for the violation, then he/she will be deemed to have “voluntary abandoned” the job, which then disqualifies the injured worker from future payment of disability compensation until such time as the worker would return to work elsewhere and potentially have a new period of disability related to the allowed work injury. The same result follows when an injured worker refuses a legitimate offer of light duty and then is terminated for not showing up for work. Such cases are considered a voluntary abandonment of employment and therefore a disqualification for disability compensation. Voluntary abandonment often involves complex factual and legal issues because both the injured workers’ job and the injured workers’ right to disability compensation are at stake.
Exceptions when a job might be protected.
Ohio Revised Code Section 4123.90 provides that no employer shall discharge any employee because the employee filed a workers’ compensation claim. The statute further provides that such employee may file a legal action common pleas court and can be granted reinstatement with back pay, plus reasonable attorney fees. The retaliation cases are difficult because of the challenge of proving the termination was in fact retaliatory versus for a lawful reason. Another protection against termination is when the injured worker is protected by a union collective bargaining agreement. Such agreements normally require a grievance procedure be completed before a termination is final. In most cases, if the injured worker was terminated, the right remains to file a claim for unemployment compensation, but this process will not get the injured worker his/her job back.