Ohio law clearly prohibits employers from taking adverse action against an employee for filing a workers’ compensation claim. Those of you who know that already, and read that byline, might be thinking: “hold on a second, maybe Eric’s post this week says more about medical marijuana in his workplace than workers’ compensation retaliation?” Well, first of all, I don’t have a prescription. Second, like all things legal, the devil is in the details. But before I get into the details, let’s take a look at the statute itself, to determine what constitutes a “retaliatory discharge”.
Ohio Revised Code Section 4123.90 prohibits employers from firing, demoting, or taking any punitive action against an employee for filing or testifying in a workers’ compensation claim which arose in the course of the employee’s employment with that employer. The Supreme Court has extended the scope of the statute to include adverse employment actions taken before a claim has actually been filed.
That does not mean, however, that just because an employee has filed a workers’ compensation claim that they are immune from termination. The Ohio Supreme Court has interpreted the statute to enable an employer to take adverse employment action against an employee who has filed a worker’ compensation claim: 1) if the employee is unable to perform his or her duties; or 2) “for just and lawful reasons.” White v. Mt. Carmel Medical Ctr., 2002-Ohio-6446.
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 a pretext.
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 employment action, plus attorney’s fees. An action for workers’ compensation retaliation under O.R.C. §4123.90 must be filed within 180 days following the alleged adverse employment action.
So, given that background, lets take a look at the fact of the recent case that prompted this post, and see what happened. The case in question is McGree v. Gateway Healthcare Centre, L.L.C., 2019-Ohio-988, 107193, Court of Appeals of Ohio, Eighth District, Cuyahoga (March 21, 2019).
McGree began working for Gateway on February 3, 2016, and was terminated on April 21, 2016. There was no dispute that McGree was not injured on the job during her employment with Gateway. McGree testified that she never thought of filing a claim against Gateway. She claimed that she was terminated because, previous to her employment with Gateway, she filed a workers’ compensation claim against another employer for a back injury she sustained in 2014. Gateway maintained that they terminated McGree because she had not obtained medical clearance to return to work from her workers’ compensation physician before she started with Gateway.
The Court dismissed McGree’s workers’ compensation retaliation action because she provided no evidence that her discharge was connected to the pursuit of a workers’ compensation claim against Gateway. Per the Court “(t)he plain language of R.C. 4123.90 is limited to an employer who retaliates against an employee for pursuing a workers‘ compensation claim against that employer. Because McGree did not claim that she was terminated for pursuing a workers‘ compensation claim against Gateway, or claim to have suffered an injury occurring in the course of and arising out of her employment with Gateway, she failed to establish a claim for retaliatory discharge or wrongful discharge in violation of public policy under the Ohio Workers‘ Compensation Act.”
So, there’s the detail in which the devil resided in this case. It’s not workers’ compensation retaliation to fire an employee for filing a workers’ compensation claim against another employer.
The lesson from this case is not over, however. McGree also sued Gateway for wrongful termination based on disability discrimination. Apparently, the jury returned a verdict in favor of the defendants on the disability claims. The Court’s decision does not go into the facts, so I can’t comment on any ADA implications. However, employers should not undertake a termination of an employee with physical limitations arising out of any workers’ compensation claim lightly.