Light-duty Work as a Defense to Temporary Total Compensation

Under ORC 4123.56 and OAC 4121-3-32, if a claimant refuses to accept work that is within the physical capabilities provided by the claimant's attending physician, temporary total compensation is not payable. This legal principle was reinforced in State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, showing that light duty work can be both a cost reducer in a claim and an effective defense to the payment of temporary total compensation.

In Akron Paint & Varnish the claimant was offered two suitable jobs by his employer and he refused both of them. The claimant then attempted to seek the award of temporary total compensation, a request that was initially denied by the Industrial Commission. Later, the claimant added a new medical condition to his claim. Under the principle of "continuing jurisdiction" the claimant sought payment for the period of temporary total compensation that was previously denied. A Staff Hearing Officer of the Industrial Commission granted this request based on this new medical condition.

The Supreme Court of Ohio, in agreeing with the Court of Appeals, ruled that this award was improper in light of the claimant's refusal to accept the two job offers from his employer:

Although the worsening of an existing medical condition or a newly allowed medical condition often serves as new and changed circumstances justifying the exercise of continuing jurisdiction to modify a previous order, ... in this case, the previous order denying TTD was not based on medical evidence but rather on the statutory bar of compensation when a claimant unjustifiably refuses light-duty work made available by the employer.

It is imperative that employers provide the light-duty job offer in writing and in great detail so that there is little question that the offer of work is consistent with the medical restrictions of the attending physician. Without this detail, the Industrial Commission can state that the offer is not sufficient and proceed to award temporary total compensation.

Contact: Brian A. Tarian

614.723.2028

btarian@ralaw.com

Ohio Bureau of Workers' Compensation Begins Accepting Applications for Workplace Wellness Grant Program

The Ohio Bureau of Workers' Compensation (BWC) is now accepting applications for its new Workplace Wellness Grant Program. The BWC created the program to help Ohio employers improve the overall health of their workforce and reduce injuries by adding a wellness component to their safety programs that addresses health risk factors specific to their workplaces.

According to the BWC, employers participating in the program will be awarded up to $15,000 over a four-year period to implement wellness programs addressing health risk factors such as obesity and chronic disease. The BWC will gather data from participating employers to determine the effectiveness of the program in reducing claims frequency and costs, improving return-to-work rates, and reducing health care costs for employers.

State fund employers without existing wellness programs who are current on all premiums and other costs are eligible to apply to the BWC for a grant. The BWC is awarding grants on a first-come, first-served basis, based on the availability of funds, and it expects that over 600 businesses will apply.

Once the BWC accepts an employer into the program, the employer is required to submit biannual and annual reporting to the BWC for four years following the implementation of the wellness program and enter into a written agreement with the BWC. Further, the employer is required to implement the wellness program within three months of receiving the grant funds. Employers will be eligible to renew their participation in the program on a yearly basis. An employer will be disqualified from the program, and could face civil or criminal sanctions, if the BWC determines that the employer knowingly misrepresented information on the initial grant application, violated any laws pertaining to confidential personal health information, and/or coerced employees to participate in the workplace wellness program.

Applications for the BWC wellness grant program are available at www.ohiobwc.com.   Employers should call 1-800-OHIOBWC (1-800-644-6292) to verify eligibility before submitting the application.

Roetzel & Andress will continue to provide further information and guidance on this issue to assist you as developments arise. If you should have any questions, please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.

Contact: Kevin J. Cooper

419.254.5257

kcooper@ralaw.com

Federal Court Rules Obesity is a Disability under the ADA

A federal district court recently held that severe obesity is a disability under the Americans with Disabilities Act (ADA). In EEOC v. Resources for Human Development, Inc., No. 10-3322 (E.D.La. Dec. 7, 2011), the employee weighed over 500 pounds at the time of her termination. The EEOC brought suit on the employee’s behalf, alleging that the employer violated the ADA by terminating her.

The employer filed a motion for summary judgment on the grounds that obesity did not qualify as a disability under the ADA. The court denied the motion. The ADA does not specifically address obesity, so the court relied on the language in the EEOC’s ADA compliance manual, which states: “being overweight, in and of itself, is not generally an impairment...On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.”

The court also held that there is no requirement that an employee’s obesity be based on a physiological impairment, such as a dysfunction of the metabolic system. A disabled employee is generally not required to prove the underlying basis for his or her impairment. “Voluntariness” is also irrelevant when determining whether a condition is an impairment. For example, the ADA applies to numerous conditions that may be caused or exacerbated by voluntary conduct, such as alcoholism, AIDS, diabetes, and cancer from cigarette smoking.

Other courts have reached different conclusions regarding whether obesity is a disability. One of these courts includes the Sixth Circuit, which governs Ohio. But many of these decisions occurred prior to 2008, when the ADA Amendments Act expanded the definition of a disability. Courts holding that obesity is not a disability may choose to revisit their earlier decisions in light of the recent amendments.

Bottom line for employers: Play it safe. If you want to keep the EEOC at bay, consider obese employees to be protected by the ADA. 

Contact: Nathan Pangrace

216.615.4825

npangrace@ralaw.com

Self-insured Claim Certification and “Continuing Jurisdiction”

For self-insured employers, the decision to reject a claim will lead to a hearing with the Industrial Commission of Ohio, but the decision to certify a claim is seemingly absolute. Thankfully, though, a mechanism does exist for a self-insured employer to dispute a claim post-certification where certain grounds exist. A recent Ohio appellate decision, Lane v. Bur. of Workers’ Comp., 2012-Ohio-209, (2^nd Dist. C.A. Jan. 20, 2012), does a good job of reviewing the grounds for “continuing jurisdiction.” 

The Lane case involved an injured worker who, on a Saturday, was arrested for a license suspension and, at the time of his arrest, complained of a left shoulder injury. On the subsequent Monday, the injured worker allegedly injured his left shoulder while pushing a vegetable bin at work. Although this was an unwitnessed incident, the injured worker immediately sought initial treatment and was diagnosed with a shoulder strain, and upon receipt of the initial treatment record, the employer certified the claim for left shoulder strain based on the available information. It should be noted, though, that claim certification was done without knowledge of the arrest that had occurred two days prior. Subsequent to the claim certification, the employer became aware of the arrest and the injured worker’s disclosure of his prior left shoulder injury. The employer filed a motion, alleging that the Industrial Commission had jurisdiction under O.R.C. 4123.52 to “correct a potential fraud and/or mistake of fact” regarding the certification of the claim. The Industrial Commission ruled in the employer’s favor on the basis that discovery of the arrest records constituted “new and changed circumstances” allowing for the exercise of continuing jurisdiction. The claim was denied in its entirety at a Staff Hearing.

Having exhausted his administrative remedies, the injured worker appealed the denied claim in common pleas court, and the trial court, following a bench trial, ruled in favor of the employer. In deciding that the injured worker was not entitled to participate in the workers’ compensation system, the trial court noted that the employer’s prior claim certification as a self-insured employer was no longer in effect after the Industrial Commission assumed jurisdiction, and concluded that the injured workers’ alleged injury was not in the course of, and arising from, his employment. An appeal to the court of appeals was then undertaken by the injured worker.

In its decision to affirm the judgment of the trial court, the appeals court cited O.R.C. 4123.52 and State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202, 1994-Ohio-437, regarding continuing jurisdiction. In Baker, the Ohio Supreme Court referenced the statutory provisions of O.R.C. 4123.52 and held that where there were instances of new and changed conditions, fraud, or clerical error, the Industrial Commission had jurisdiction to modify a certified claim. The appeals court also stated that subsequent cases have further expanded the grounds for continuing jurisdiction to include new and changed circumstances, mistakes of fact and law, and “error by an inferior tribunal.”  It is this comprehensive list of “exceptions” that a self-insured employer should be mindful of when managing its claims, as more often than not, new information is discovered post-certification.

Contact:

Christopher R. Debski

330.849.6717

cdebski@ralaw.com

NLRB Issues Social Media Update

On January 24, 2012, the National Labor Relations Board (NLRB) Acting General Counsel, Lafe Soloman, issued a new report on unfair labor practice cases involving employee use of social media and employers’ social media policies. The report (Memorandum OM 12-31) summarizes 14 recent social media cases reviewed by the NLRB’s Division of Advice.

The report reveals that the Acting General Counsel continues to follow the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act, whereas social media use by employees to simply voice “individual gripes” does not constitute protected activity. The report also provides useful guidance for employers drafting social media policies on the type of language that the NLRB’s Division of Advice considers unlawful.

Protection for Concerted Activity

In one case, an employee working for a collections agency, upset that she had been transferred to a lower-paying position, updated her Facebook page with a post that stated that the employer had “messed up” and that she was done being a good employee. This comment included expletives.

A coworker commented on this post, indicating that he was “right behind” the employee. Another coworker commented with a similar expression of support for the employee. Additionally, several former employees also posted remarks, including one comment that called for a class action against the employer.

When the employee returned to work, the employer showed her a copy of her Facebook posts and terminated her employment due to her comments. The Acting General Counsel said that the employee’s initial Facebook statement and the discussion it generated involved complaints about working conditions and the employer’s treatment of its employees, and clearly fell within the NLRB’s definition of concerted activity. He further concluded that the employer unlawfully terminated the employee in response to her protected activity.

The NLRB’s Division of Labor also found the employer’s rule prohibiting “making disparaging comments about the company through any media” unlawful. The Acting General Counsel stated that this rule could reasonably be construed to restrict protected activity, including employee statements about unfair treatment. He further noted that the rule contained no limiting language that would clarify to employees that the rule does not restrict such protected activity.

Individual Gripes Not Protected

In contrast, the NLRB’s Division of Advice concluded that an employee’s angry Facebook update complaining about her coworkers and employer and stating that she hated people at work did not constitute protected concerted conduct because the postings merely expressed the employee’s personal anger with her coworkers and employer, were made solely on the employee’s own behalf, and did not involve the sharing of common concerns.

However, the employer’s social media policy was found to be unlawful. That policy prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with the employer’s mission. The policy further prohibited unprofessional or inappropriate communication regarding members of the employer’s community. The NLRB’s Division of Advice found this language would reasonably be construed to chill employees in the exercise of their protected rights.

Lawful Policy Language

Another case cited in the report provides an example of social media policy language considered lawful. In this case, the employer’s policy prohibited the use of social media “to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” The Acting General Counsel stated that this rule prohibiting comments about coworkers, supervisors, or the employer could not reasonably be construed to apply to protected activity as appears on a list of “plainly egregious conduct,” such as discrimination or harassment based upon protected classifications.

A full copy of the Acting General Counsel’s Memorandum OM 12-31 can be found at https://www.nlrb.gov/operations/om-memoranda-0.

Contact: Emily Ciecka Wilcheck

419.254.5260

ewilcheck@ralaw.com

Supreme Court of United States Recognizes “Ministerial Exception” to Workplace Discrimination Laws

In a decision released on January 11, 2012, the Supreme Court of the United States ruled unanimously that a “called” teacher is a “minister” covered by the ministerial exception, grounded in Religion Clauses of the First Amendment, and that the ministerial exception operated as an affirmative defense, not a jurisdictional bar, to employment discrimination claims against a religious employer.

The case, Hosanna–Tabor Evangelical Lutheran Church and School v. E.E.O.C., --- S.Ct. ----, 2012 WL 75047 (U.S.), arose out of an action brought by the Equal Employment Opportunity Commission (EEOC) against a member congregation of the Lutheran Church, alleging that a “called” teacher (a teacher who must complete certain academic requirements, including a course of theological study and is recognized as a “Minister of Religion, Commissioned”) at its school had been fired in retaliation for threatening to file an Americans with Disabilities Act (ADA) lawsuit. The teacher, Cheryl Perich, intervened, claiming unlawful retaliation under both the ADA and state law for her dismissal due to the condition of narcolepsy.  Invoking what is known as the “ministerial exception,” Hosanna–Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers.  The United States District Court for the Eastern District of Michigan granted the congregation's motion for summary judgment. The EEOC and Perich appealed. The United States Court of Appeals for the Sixth Circuit vacated the lower court’s decision and remanded the matter, finding that Perich did not qualify as a “minister” under the exception. Certiorari was then granted to the congregation.

After a review of the facts of the case and a lengthy review of the history of religious freedoms in both Britain and the United States, Chief Justice John Roberts wrote:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

In finding that the facts of the case supported the application of the “ministerial exception” against Perich, the Court stated: 

[t]he interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

While this decision has been widely celebrated by religious groups and institutions as an affirmation of unfettered First Amendment rights with regard to employment decisions, the Supreme Court expressly limited its decision, holding that the “ministerial exception” only bars an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. The Court expressed no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.

Contact: Kevin J. Cooper

419.254.5257

kcooper@ralaw.com

Recent NLRB Ruling Prohibits Employers from Requiring Employees to Sign Arbitration Agreements that Forbid the Collective Pursuit of Employment-Related Claims

On Friday, January 6, 2012, the National Labor Relations Board (NLRB) released its ruling on the issue of “whether an employer violates Section 8(a)(1) of the National Labor Relations Act when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial.” In D.R. Horton, Inc. and Michael Cuda, Case 12-CA-25764 (January 3, 2012), the NLRB concluded that such an agreement unlawfully restricts employees’ Section 7 rights to engage in concerted activity for mutual aid or protection.   

Michael Cuda, the Charging Party, alleged that his employer, D.R. Horton, was misclassifying its superintendents (including himself) as exempt from the provisions of the Fair Labor Standards Act (FLSA). His counsel sought to have the matter certified as a nationwide class action. D.R. Horton countered that the Mutual Arbitration Agreement (MAA) – which was executed by all employees as a condition of employment – solely permitted disputes to be resolved via individual arbitration – thus prompting Mr. Cuda to file an unfair labor practice charge.

At issue in this case were the MAA’s requirements that (i) all employment-related disputes will be determined by a final and binding arbitration and (ii) the arbitrator “may hear only Employee’s individual claims,” “will not have the authority to consolidate the claims of other employees,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding.” 

In concluding that the MAA expressly restricts protected activity, the NLRB reasoned:

The MAA requires employees, as a condition of their employment, to refrain from bringing  collective or class claims in any forum: in court, because the MAA waives their right to a judicial forum; in arbitration, because the MAA provides that the arbitrator cannot consolidate claims or award collective relief. The MAA thus clearly and expressly bars employees from exercising substantive rights that have long been held protected by Section 7 of the NLRA.

As such, D.R. Horton was instructed to rescind the MAA or revise it to clarify that employees do not have to waive their right to pursue a class or collective action.

The NLRB further held that the recent United States Supreme Court ruling in AT&T Mobility v.  Concepcion, 131 S. Ct. 1740 (2011) did not require a different result because that matter was a consumer class action that involved a conflict between the Federal Arbitration Act and state law (thereby implicating the Supremacy Clause), whereas the instant case addressed two conflicting federal statutes.

In sum, the NLRB has made clear its position that class action waivers do not belong in the workplace, and requiring such a waiver as a condition of employment is an unfair labor practice. The decision, which applies both to union and non-union workforces, will most assuredly be appealed to a federal court of appeal.

Contact: Jaime A. Maurer

239.338.4258

jmaurer@ralaw.com