Ohio Workers’ Compensation Update

A couple of issues that have a direct impact on Ohio employers have made news recently. Here’s a quick review of both: 
·         First, the Ohio Bureau of Workers’ Compensation (BWC) has introduced a new rating plan that encourages employers to maintain safe workplaces and to work with injured workers to speed their return to work.
According to the BWC, the new rating plan, Destination: Excellence, aims to improve return-to-work rates by offering employers more choice in building a risk management plan that focuses on safety, prevention and returning injured workers to their jobs more quickly. The plan allows employers to select from seven new and existing program options to customize a plan that addresses their specific needs. The programs address workplace safety and stress transitional work and vocational rehabilitation programs while providing opportunities to reduce premiums through adoption of best practices and meeting certain performance requirements. Additional savings are also possible for effective policy maintenance, such as doing business online and keeping current on premiums.
The proposal, introduced to the BWC Board of Directors during its meetings on November 17 and November 18, will be up for approval at the next meeting on December 16.
·         Second, major reform of Ohio's workers' compensation system is apparently no longer a top priority for the Kasich Administration, even though it was one of the things the governor named as a top priority upon taking office in January of this year. 
Governor John Kasich, in comments over the past few weeks, insisted that the reform proposal wasn't being shelved because of the contentious fight over Senate Bill 5/Issue 2. 
"We've already done significant workers' comp reform, and we're focusing internally," he said. "To get major workers' comp reform, you're going to need both labor and management to sit down. But we've made progress. We've reduced the base rate. We've just reset rates again. There's a lot of things that we can continue to do to improve the system without having to go to the legislature. But some of the other things that have to be done have to be done with the cooperation of other folks."
Among the ideas discussed was the injection of a private insurance element to compete with the state-run insurance fund for injured workers and overall benefit cuts, changes in workers’ compensation that would most certainly garner the opposition of organized labor.
Roetzel & Andress will continue to provide guidance to employers as these issues continue to develop. If you should have any questions, please contact any of our offices to discuss these matters further with one of our workers’ compensation attorneys.



It’s the Most Wonderful Time of the Year…for a Lawsuit: The Perils of Holiday Parties

Holiday parties offer employees an opportunity to celebrate with co-workers and provide employers an opportunity to show appreciation for a year of hard work. They can also offer many opportunities for employers to be named as defendants in lawsuits.
Consider the scenario where an employee falls and injures himself at the holiday party. Whether or not the injury is compensable under workers’ compensation statutes depends on a number of factors, such as where the party was held and whether attendance was mandatory.
Holiday parties are notorious for spawning sexual harassment lawsuits, so think twice before hanging the mistletoe. A supervisor is still a supervisor and in a position of power, even at a holiday party. Further, unwelcome conduct at a holiday party is not analyzed under a different standard simply because the conduct occurred outside work hours or off the employer’s premises.
Liability does not necessarily end when the party ends. Alcohol is a significant contributing factor in conduct resulting in employee injuries and sexual harassment claims, but it is also a cause for concern when employees leave the party. An employee who causes an automobile accident on the way home from the holiday party may also result in liability for the employer.
Fortunately, there are a few things an employer can do to limit its potential liability:
  • Hold holiday parties away from the employer’s place of business;
  • Use third-party vendors to serve alcohol;
  • Stress that attendance at the party is voluntary, and make sure no subtle suggestions are made that attendance would be beneficial to an employee’s career or continued employment. Additionally, make sure employees are aware that time spent attending a holiday party will not be considered hours worked;
  • Don’t hand out bonuses or service awards at the holiday party because doing so increases the perception the party is a work function rather than a social event;
  • Invite employees’ spouses or guests. Not surprisingly, the presence of these guests is likely to limit cases of sexual harassment and will help monitor employees’ consumption of alcohol;
  • If serving alcohol, serve food;
  • Stop serving alcohol a couple of hours before the party ends;
  • Make alternative transportation available or provide hotel rooms to employees who have consumed too much alcohol. Even a simple offer to pay for taxis can limit an employer’s liability;
  • Ensure the venue for the party is accessible for individuals with disabilities;
  • If the party is being held at a private club, make sure it is not one with restricted memberships that may give rise to a discrimination claim; and
  • If an incident does occur at a holiday party, such as an employee injury or a report of sexual harassment, follow your policies and procedures related to investigations.
Holiday parties are supposed to be fun, and they still can be while also limiting the potential for liability.

Contact: Jon Secrest

Ohio Turns to New Means to Stem Unemployment Fraud

Facing a $32 million figure for unemployment theft over the last 12 months, the Ohio Department of Job and Family Services announced a new initiative to combat the rising tide. It has introduced a new website where anonymous tips may be left by those who suspect unemployment fraud, such as an individual continuing to collect benefits while working.

ODJFS already has a fraud unit dedicated to investigating allegations of fraud. Those caught receiving fraudulent benefits are subject to criminal penalties as well as penalties against any future unemployment claims. ODJFS’s fraud website is located at: https://unemployment.ohio.gov/fraud.

Contact: Karen Adinolfi


Guilty as Charged? Consider a Different Approach.

As an employer, what do you do when an employee receives a traffic citation while driving in the course of his or her employment?  If you are like most employers, you require the employee to handle the ticket and to pay any fines associated with it. It’s a good policy. The employer should not have to pay for the employee’s bad driving habits.

However, when an employee receives a traffic citation associated with a motor vehicle accident, the employer should consider a different approach. This is because an accident could give rise to claims for personal injury or property damage from the other parties involved in the collision. If those claims cannot be resolved, a lawsuit will likely be filed against both the employee and the employer. Depending upon how it is handled, the traffic citation – although a minor misdemeanor – could play a major role in that lawsuit.

An example will help illustrate the point. Employee Emily is involved in an intersection collision with another vehicle while driving in the scope of her employment. Emily believes she had a green light, while the other driver, Dave, believes he had a green light. The police arrive, conduct an investigation, and issue a traffic citation to Emily for running a red light.

Emily’s employer tells her to handle the traffic citation and that she will have to pay any fines associated with it. Not wanting to fight the charges, or not believing she has any other recourse, Emily pays the fine, which she is able to do online.

Several months later, Dave brings a personal injury lawsuit against Emily and her employer arising out of the intersection collision. Because Emily was in the course and scope of her employment at the time of the accident, if the jury finds that Emily was at fault, the employer will be liable as well.

At trial, the employer’s attorney argues that Emily was not negligent and presents evidence that Dave ran a red light, not Emily. However, Dave’s attorney presents a copy of the traffic citation issued to Emily by the responding police officer. He also presents evidence that Emily paid the traffic citation, which is legally considered a Guilty plea, i.e. an admission of guilt by Emily. Emily was advised of this in fine print when she paid the ticket online, but, like most people, did not read it before clicking the “Pay Now” button. Over objection from the employer’s attorney, the Court permits the jury to consider Emily’s Guilty plea. The jury returns a verdict for Dave, requiring the employer to pay because it interpreted Emily’s Guilty plea as her admission that she ran a red light.

By taking a slightly different approach with the traffic citation, an employer can avoid this scenario. For instance, instead of paying the ticket online, Emily could appear in Court at the date and time designated on the ticket and plead No Contest. A No Contest plea is similar to a Guilty plea, with one important exception: a No Contest plea is not an admission of guilt. Emily will still have to pay the fine, and any points that would attach to the citation will still attach. However, any evidence concerning the traffic citation or how Emily plead is not admissible in a civil lawsuit such as the personal injury suit brought by Dave. The jury will never know about it.

Employers can still require the employee to handle the ticket and pay the fine. However, the employer should play a more supportive role in informing and guiding the employee in how to respond to the ticket. Depending on the employee, a supervisor or the employer’s counsel may need to take a more active role in resolving the citation in a way that will not be harmful to the employer.

Bear in mind that there is more than one way to handle a traffic citation. Another option is to call the prosecutor ahead of time, present any arguments in the employee’s favor and ask to work out a deal that avoids entering a Guilty plea. Indeed, one of the purposes of excluding No Contest pleas in related civil lawsuits is to encourage plea bargaining as a means of resolving criminal matters. Elevators Mut. Ins. Co. v. J. Patrick O'Flaherty's, Inc. (2010), 125 Ohio St.3d 362, 365.

Whatever the employer’s policy on handling traffic citations received by employees while in the course of employment, the danger lies in the Guilty plea. When an employee is involved in an accident that could give rise to a lawsuit for personal injury or property damage by a third party, the employer and employee should understand the ramifications of simply paying the fine and develop a strategy to avoid entering a Guilty plea that can come back to bite them later.

Contact: Chris Cotter


Reminder: Ohio's Workers' Compensation Intoxication/Drug Use Statute

Ohio Revised Code Section 4123.54 provides that if, at the time of an on-the-job injury, an employee is intoxicated or under the influence of a controlled substance not prescribed by a physician, an injury can be declared to be not compensable. Every employer must post a written notice to employees that the results of post-accident drug/alcohol testing, or the refusal to submit to this testing, creates a rebuttable presumption that the intoxication or influence of a controlled substance not prescribed by a physician is the proximate cause of the injury. If this occurs, the employee then has the burden of proving that the injury was not caused by these circumstances.

This written notice requirement is addressed in multiple portions of this statute and in great detail. The notice must be the same size or larger than the employer's certificate of coverage, and must be posted in the same location as this certificate. One method of reinforcing the posting of this notice is by addressing it in the company’s employee handbook. A strong intoxication/drug use policy can give employees additional notice of the consequences of this conduct, warning them of potential termination as well as informing them that this wrongful conduct may leave them without the coverage of a Workers' Compensation claim should they be injured.

Roetzel’s Workers’ Compensation attorneys can assist employers in defending this type of claim and can help companies update their employee handbooks to ensure that appropriate policies are in place to support the defense of potential claims.