Earlier this week, in a victory for Ohio employers, the Supreme Court of Ohio decided that an at-will employee who is terminated from employment while receiving workers’ compensation benefits cannot pursue a common law tort claim against his or her employer for wrongful discharge based on the public policy underlying Ohio’s workers’ compensation system. As a result, the anti-retaliation section of the workers’ compensation statute, R.C. 4123.90, is the exclusive remedy for an at-will employee terminated from employment while receiving workers’ compensation benefits. (Bickers v. Western & Southern Life Insurance Co., Slip Opinion No. 2007-Ohio-6751, decided December 20, 2007.)
Employers have waited more than four years for the Ohio Supreme Court to revisit its 2003 decision in Coolidge v. Riverdale Local School District (100 Ohio St.3d 141, 2003-Ohio-5357), which resulted in substantial criticism by employers and employment attorneys. In Coolidge, the Court held that it was contrary to Ohio public policy to terminate an employee “solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition” under the workers compensation law.1 Accordingly, in Coolidge, the Ohio Supreme Court found it unlawful for a school district to fail to renew a teacher’s contract because of absenteeism caused by a workplace injury for which she was still receiving workers’ compensation benefits. Although the Coolidge case involved an employee with an employment contract, the Court did not distinguish between an employment contract situation and an at-will employment situation.
After Coolidge was decided, there was considerable uncertainty as to whether the Ohio Supreme Court had created a new public policy exception to the employment at-will doctrine in Ohio. In Bickers, the Ohio Supreme Court addressed the question of whether Ohio recognized a claim for wrongful discharge when an employee is terminated while receiving workers’ compensation benefits.
Bickers v. Western & Southern Life Insurance Co. – Background and Discussion
Shelley Bickers was injured in 1994 while working for Western & Southern Life Insurance Company. Ms. Bickers filed a claim for workers’ compensation, and the claim was allowed for multiple conditions. Following the injury, Ms. Bickers experienced periods of inability to work related to the injuries for which she received workers’ compensation benefits. During one such period, which lasted five months, Western & Southern terminated Ms. Bickers while she was still receiving temporary total disability benefits related to her workers’ compensation claim.
Ms. Bickers did not file a statutory claim of retaliation under R.C. 4123.90, which prohibits an employer from terminating an employee for having filed or pursued a workers’ compensation claim. Instead, she filed a tort lawsuit against Western & Southern for wrongful discharge. Ms. Bickers alleged that she had been wrongfully terminated while receiving temporary total disability benefits in violation of the state’s public policy barring discrimination against workers’ compensation claimants. In support of her claim, Ms. Bickers relied on the Coolidge decision.
The trial court dismissed Ms. Bickers’ complaint for failing to state a valid claim for relief under Ohio law. On appeal, however, the 1st District Court of Appeals decided that the Ohio Supreme Court’s decision in Coolidge allowed Ms. Bickers to maintain a claim of wrongful discharge in violation of public policy. The appellate court reversed the decision of the trial court. Then, Western & Southern appealed this decision to the Ohio Supreme Court.
In this week’s 5-2 decision, the Court reversed the ruling of the 1st District. In the process, the Court limited the scope of the Coolidge decision. Acknowledging that Coolidge had been harshly criticized by legal commentators, the Court found it “necessary to clarify the Coolidge opinion.”2 Harkening back to the factual situation presented in the Coolidge case, the Court explained that Coolidge is “confined to considerations of whether ‘good and just cause’ supported the termination of an employee [e.g., a teacher] protected under R.C. 3319.16.”3 And since Ms. Bickers was not a teacher protected by R.C. 3319.16, the Court determined that the Coolidge decision did not apply to Ms. Bickers.
Beyond finding Coolidge inapplicable to Ms. Bickers’ case, the Court declined to recognize a public policy tort claim based upon the anti-retaliation provisions contained in R.C. 4123.90. The Court found it “inappropriate for the judiciary to presume the superiority of its policy preference and supplant the policy choice of the legislature.”4 Accordingly, the Court found that Ms. Bickers’ remedy “must be found within the workers’ compensation statutes.”
Ms. Bickers could not, however, establish a statutory claim. She had not asserted a retaliatory discharge claim based upon the workers’ compensation statutes; at best, she based her claim upon the theory that it was unlawful for Western & Southern to have terminated her while she was receiving temporary total disability benefits. But as the Ohio Supreme Court recognized, the legislature has not placed upon employers the burden “to hold open the jobs of injured employees for indefinite periods of time,” something that would be especially onerous on small employers. 5 Accordingly, the Court found that the trial court properly dismissed Ms. Bickers’ claim.
Employers should be pleased that the Court finally resolved the question of whether at-will employees have a wrongful discharge claim based on the public policy underlying Ohio’s workers’ compensation system. Employers must remain careful not to terminate an employee in retaliation for filing a workers’ compensation claim or participating in a workers’ compensation proceeding, which would violate R.C. 4123.90. Indeed, the Ohio Supreme Court emphasized that such retaliatory firings are squarely prohibited by the workers’ compensation law.6
Employers now know, however, that there is no blanket prohibition on terminating an employee who is receiving temporary total disability benefits under Ohio’s workers’ compensation system. Any such prohibition will have to emanate from the legislature. But for now, after Bickers, Ohio employers will no longer have to worry about non-retaliatory dismissals being declared unlawful by Ohio courts.