OSHA’s New Pathway for Workers’ Compensation Retaliation Complaints Upheld

Most employers are aware of the prohibitions against taking any adverse action against an employee for filing a workers’ compensation claim.  First of all, Ohio Revised Code Section 4132.90 specifically prohibits workers’ compensation retaliation, and provides a cause of action for employees who feel they were retaliated against.  For a more detailed discussion of the provisions of R.C. 4123.90 see my blog post here.

A recent decision in the case of Secretary of Labor vs. U.S. Postal Service reminds us that employers also need to keep the possibility of an action through the Occupational Safety and Health Administration in mind as well.

The case arose out of a citation issued by OSHA for alleged retaliation by the USPS against an employee who filed a claim for a workplace injury.  The USPS contested the citation, and asserted that the new “citation-based” pathway for OSHA complaints regarding worker’s compensation retaliation was invalid, because employees already had the right to file retaliation complaints into court under Section 11(C) of the OSHA Act.  The USPS asserted that an OSHA citation for workers’ compensation retaliation without a court action was improper.  OSHA’s administrative law judge rejected that defense.  For a more detailed discussion of the USPS decision see the attached article from Business Insurance.com.

So, what’s the takeaway for Ohio employers?  Remember that before taking any adverse employment action against an employee who has filed a workers’ compensation claim you need to consider the possibility of: 1) a court action under R.C. 4123.90 for reinstatement with back pay; 2) a court action by the employee under section 11(C) of the OSHA act; and 3) an OSHA citation with penalties and other remedies for the employee.

As I pointed out in my blog post above, there is also possibility that the employee could assert that the employer violated the Americans with Disabilities Act.  In short, if there is a legitimate, non-discriminatory reason for it, employers can still go ahead with the proper disciplinary action.  You may want to consider calling your lawyer first, however.

Many thanks to Jon Hyman at Ohio Employer Law Blog for highlighting this post in his April 5 weekly blog roundup.

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