Ok, I’ll admit, that by-line sounds kind of dumb. Of course it is, certainly to the employee who has been terminated. However, a recent case made me think about whether the specter of a retaliatory discharge action should keep my clients from terminating (or taking other disciplinary action against) an employee who should legitimately be terminated/disciplined for non-claim related reasons. So, let’s take a look at what employers are actually risking by taking action that might lead to a retaliatory discharge lawsuit under O.R.C. §4123.90.
First, let’s take a look at the language of the statute itself, to determine what constitutes a “retaliatory discharge”. R.C. §4123.90 provides, in pertinent part:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act.
The Supreme Court has extended the scope of the statute to include adverse employment actions taken before a claim has actually been filed. However, the case law also provides that “the scope of the statute is narrow….and does not prevent an employer from taking [an adverse employment action against] an employee who is: a) “unable to perform his or her duties”; or b) “for just and lawful reasons.” White v. Mt. Carmel Medical Ctr., 2002-Ohio-6446.
So, according to White, an employer would be in their rights to terminate an employee who could no longer perform his or her job duties. As I’ve discussed before however, don’t forget about the possible ADA and FMLA implications before terminating an employee. Make sure that you have engaged in the interactive process to see if there is a reasonable accommodation which can enable the employee to perform his or her job duties. Also make sure that all available FMLA leave has been exhausted. Just as an aside, to those few of you who don’t already know this, you can and should be running FMLA leave concurrently with the employee’s temporary total disability.
An employer would also be in their rights to terminate an employee “for just and lawful reasons”. Ohio courts use a burden-shifting analysis in R.C. §4123.90 actions. First, the employee must establish a prima facie case of retaliation. Then the burden shifts to the employer to set forth a legitimate, non-retaliatory reason for the adverse employment action. Then the burden shifts back to the employee to show that the asserted non-retaliatory reason was pretextual. I’ll leave a further discussion of some factual scenarios for a later post. I know, I know, you’re thinking “I just don’t think I can wait to hear that discussion”!
Next, let’s take a look at the consequences of being found to have taken an adverse employment action against an employee in retaliation for pursuing a workers’ compensation claim. Under R.C. §4123.90, relief is limited to reinstatement with back pay, or in the case of an adverse action that did not involve a discharge, wages lost as the result of the adverse action, plus attorney’s fees.
Lastly, remember that R.C. §4123.90 actions are barred unless filed within 180 days following the alleged adverse action.
So, employers who are faced with a problem employee who has filed a workers’ compensation claim, but for totally separate reasons should be terminated or disciplined should proceed….with caution….making sure that there is a truly non-retaliatory motive, and that all potential consequences under the ADA and FMLA have been taken into account.