Employer Discrimination Against Injured Workers

M E M O R A N D U M

 

     

      TO:                 Kim Robinson, Claims Policy Manager

     

      FROM:           Tom Sico, Director of Legal Operations

 

SUBJECT:           Update on Employer Discrimination Against Injured Workers

 

DATE:      March 12, 2004

 

Introduction

 

Due to recent court decisions addressing employer discrimination against injured workers, this memorandum is an update to the July 29, 1999 Legal Operations memo on that subject.  The previous memo responded to your inquiry concerning the rights of injured workers who have been discriminated against by their employers after filing a workers’ compensation claim.

 

The discrimination can involve retaliation, such as firing, demotion, reassignment or other punitive action.  It can also consist of an employer failing to accommodate a work environment or work schedule to the physical or psychological limitations of an injured worker.  Depending on the circumstances, several laws may protect an employee from some or all of those types of discrimination.  The most important laws are Ohio Revised Code §4123.90, the Americans with Disabilities Act, the Ohio Civil Rights Laws, the Rehabilitation Act of 1973, and the Family and Medical Leave Act.[1]

 

BWC is not responsible for enforcing the laws protecting injured workers from discrimination.  It is not uncommon, however, for injured workers to request information from BWC concerning their rights in connection with alleged discrimination.  Moreover, some employers contact BWC in seeking to avoid violating the anti-discrimination laws.  Thus, BWC should be able to provide customers with general information about these laws and refer them to appropriate sources for additional assistance. 

 

Some of the anti-discrimination laws discussed in this memorandum also apply to many circumstances not involving injured workers and their employers.  But the following discussion focuses on provisions relevant to complaints by injured workers that their employers have discriminated against them because of a workers’ compensation claim.  The last paragraph of each major section identifies contacts to which employers and injured workers may be referred for further information.  And attached to this memorandum is a chart summarizing significant provisions of the laws.  The chart includes phone numbers and websites of sources that customers can contact for additional assistance.

[1] Several other laws protecting injured workers from employer misconduct are not discussed in this memo because they do not directly relate to your inquiry.  The Ohio Supreme Court held in Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St.3d 126 that an injured worker has a civil cause of action against a self-insuring employer that intentionally and wrongfully terminates compensation.  R.C. 4123.35(G) and Ohio Admin. Code 4123-19-09(F) impose a financial penalty on a self-insuring employer for “harassing, dismissing, or otherwise disciplining any employee” who makes a complaint about the employer to BWC.   R.C. 4123.521 awards an injured worker up to $750 from an employer that appeals a workers’ compensation claim “for the purpose of delay or other vexatious reason and without reasonable ground."

 

 

R.C. 4123.90 and Related Rights

 

R.C. 4123.90 is the workers’ compensation statute protecting injured workers from retaliation in connection with their claims. The statute provides that 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. . . .”  An employee is protected by this statute regardless of whether the claim is allowed or denied.  Kilbarger v. Anchor Hocking Glass Co. (1995), 107 Ohio App.3d 763.  

 

If an employer violates R.C. 4123.90, the employee’s remedy involves two steps.  The first is to provide the employer with written notice of a claimed violation within 90 days of the discharge, demotion, reassignment or other punitive action. The purpose of this requirement is to encourage the parties to resolve the problem without going to court.  The second step is to file suit in common pleas court in the county of employment within 180 days of the punitive action.  It is imperative that an employee comply with the 90- and 180-day time limits because the employee’s rights under the statute will be lost if the deadlines are missed.

 

In Coolidge v. Riverdale Local School Dist. (2003), 100 Ohio St.3d 141, the Ohio Supreme Court recognized that R.C. 4123.90 expresses a public policy against employers discharging or otherwise penalizing employees for work-related injuries.  Thus, the court held that an employee who is receiving temporary total disability compensation may not be discharged solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition in the claim.  The court stated that employees who are temporarily and totally disabled have a right “to whatever period of absence from work is deemed medically necessary to complete their recovery or stabilize their injuries.”  And the court quoted with approval a Kansas Supreme Court decision that absences caused by an employee’s work-related injuries cannot be counted against the employee for purposes of the employer’s attendance policy. 

 

As for the information an employee must provide the employer while on temporary total disability, the Coolidge case indicates that the employee may not ignore the employer’s “reasonable inquiries” into the cause or length of an absence.  Nor can the employee refuse to answer the employer’s requests “for relevant information regarding the employee’s condition or work status.”  But the court warned that an employee “may not be discharged for failing to complete forms required for a leave of absence, or for failing to notify his or her employer as to the length of the absence, where the employer is otherwise on notice of the employee’s condition and status.” 

 

R.C. 4123.90 specifies that relief available under the statute includes reinstatement, back pay, lost wages and attorney fees.  Reinstatement means restoring all rights, privileges and benefits lost as a result of the punitive action.  Mechling v. K-Mart Corp. (1989), 62 Ohio App.3d 46, 50.  Subtracted from awards are earnings, temporary total disability compensation and unemployment compensation received after the punitive action.   

 

The Coolidge case affirms that in addition to the statutory cause of action provided by R.C. 4123.90, a common law action can be brought for violating the public policy embodied in that statute.  The same conclusion was reached by an appeals court in Boyd v. Winton Hills Medical & Health Ctr., Inc. (1999), 133 Ohio App.3d 150, which held that remedies beyond those set forth in R.C. 4123.90 can be recovered in the action. 

 

The Ohio Supreme Court stated in Bryant v. Dayton Casket Co. (1982), 69 Ohio St.2d 367, 371 that R.C. 4123.90 “applies only if the employee had been discharged after taking some action which would constitute the actual pursuit of his claim, not just an expression of his intent to do so.”  Nonetheless, in a case where R.C. 4123.90 did not apply because the injured worker was fired before having a chance to pursue a claim, a common pleas court held that the worker had a cause of action for wrongful discharge in violation of public policy.  The court limited this right, however, to circumstances in which a termination occurs so quickly after an injury that the employee has no reasonable opportunity to file, institute or pursue a claim.  Moore v. Animal Fair Pet Ctr., Inc. (1995), 81 Ohio Misc.2d 46, 51.  Therefore, in order for an injured worker to be protected by R.C. 4123.90 and the underlying public policy, the claim should be filed as soon as possible.

 

Because common pleas courts are responsible for enforcing R.C. 4123.90 and the public policy expressed by the statute, injured workers should be advised to consult a workers’ compensation or employment discrimination attorney for assistance.  A local bar association, the Yellow Pages or the Internet can provide names of attorneys and their fields of practice.

 

Americans with Disabilities Act

 

Some injured workers may also be protected by the Americans with Disabilities Act (ADA), which is a federal law prohibiting discrimination against persons with disabilities.  42 U.S.C.S. §12101 et seq.  The ADA’s prohibitions on employment discrimination generally apply to employers having “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.”  42 U.S.C.S. §12111(5).

 

The ADA covers persons who meet the ADA’s definition of a “qualified individual with a disability.”  That term refers to persons having a physical or mental impairment that “substantially limits one or more of the major life activities.”  The term also includes persons having a record of or regarded as possessing such an impairment.  42 U.S.C.S. §12102(2); 42 U.S.C.S. §12111(8); 29 C.F.R. §1630.2(g),(m).  The “major life activities” are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.  29 C.F.R. §1630.2(h)(2)(i).  Temporary impairments having little or no long-term impact are generally not considered disabilities under the ADA.  29 C.F.R. App. §1630.2(j).

 

If an injured worker is a “qualified individual with a disability,” a covered employer may not use the disability as a basis for discriminating against the worker in regard to hiring, advancement, discharge, compensation, training, or other terms, conditions and privileges of employment.  42 U.S.C.S. §12112(a).  But the employee still must meet the skill, experience, education and other job-related requirements of the position, and must be able to perform the essential functions of the position with or without a reasonable accommodation. 42 U.S.C.S. §12111(8); 29 C.F.R. §1630.2(m). 

 

The employer is required to provide a reasonable accommodation to the known physical or psychological limitations of a qualified individual with a disability.  In general, an accommodation is any change in the work environment or the way things are customarily done that enables an individual with a disability to perform the job and otherwise enjoy equal employment opportunities.  29 C.F.R. App. §1630.2(o).  Nevertheless, an accommodation is not required if the employer shows that the accommodation would impose an undue hardship on its business.  42 U.S.C.S. §12112(b)(5)(A).  And the employer need not accommodate an employee whose condition is shown by objective evidence to pose a “direct threat” to the health or safety of the employee or others in the workplace, unless a reasonable accommodation would remove the threat.  42 U.S.C.S. §12113(b); 29 C.F.R. §1630.15(b)(2); 29 C.F.R . App. §1630.2(r). See also, Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002).

 

Reasonable accommodations can include, but are not limited to, making facilities accessible to and usable by individuals with disabilities, acquisition or modification of equipment or devices, job restructuring, part-time or modified work schedules, reassignment to a vacant position, or other similar actions.  42 U.S.C.S. §12111(9); 29 C.F.R. §1630.2(o)(2).  Reasonable accommodations may also involve permitting the employee to use accrued paid leave, or supplying additional unpaid leave, for necessary treatment of the employee’s disability.  29 C.F.R. App. §1630.2 (o). 

 

The federal Equal Employment Opportunity Commission (EEOC) and the Ohio Civil Rights Commission have dual authority to investigate and attempt to resolve ADA violations.  The ADA incorporates the statutory enforcement remedies of Title VII of the Civil Rights Act of 1964.  42 U.S.C.S. §12117(a).  Generally, Title VII requires complaints to be filed within 180 days of the discriminatory act.  42 U.S.C.S. §2000e-5(e).  In some circumstances, however, the complaint may be filed with the EEOC within 300 days of the discriminatory act.  Id.  Recovery can include, but is not limited to, reinstatement, promotion, back pay, compensatory damages, punitive damages, injunctive relief and attorney fees.  42 U.S.C.S. §2000e-5; 42 U.S.C.S. §1981a.  It is unlawful for an employer to retaliate against an employee for exercising rights or participating in an investigation under the ADA.  29 C.F.R. §1630.12.

 

Ohio Civil Rights Laws

 

The Ohio Civil Rights Laws provide protections for many injured workers, some of whom are not covered by the ADA.  Although the ADA generally applies to employers having 15 or more employees, the Ohio Civil Rights Laws generally apply to employers having four or more employees in Ohio.  R.C. 4112.01(A)(2).  These laws also apply to the State and all political subdivisions.  Id. 

 

Under the Ohio Civil Rights Laws, an employer cannot use the disability of a “qualified disabled person” as a reason to discriminate against the person with respect to hiring, compensation, job assignments, promotions, training, benefits, leaves of absence, termination, or other terms, conditions or privileges of employment.  R.C. 4112.02(A); Ohio Admin. Code 4112-5-08(A).  A “disability” is a physical or mental impairment that substantially limits one or more of the major life activities of caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.  4112.01(A)(13).  The laws also cover persons who have a record of or are regarded as having such a physical or mental impairment.  Id.  A “qualified disabled person” is a disabled person who can safely and substantially perform the essential functions of the job with or without a reasonable accommodation.  Ohio Admin. Code 4112-5-02(H),(K). 

 

The Ohio Civil Rights Laws require an employer to provide a reasonable accommodation to the disability of a qualified disabled person, unless the employer can demonstrate that the accommodation would impose an undue hardship on its business.  Ohio Admin. Code 4112-5-08(E)(1).  But the employer need not employ a person in circumstances creating a significant occupational hazard that cannot be eliminated by a reasonable accommodation.  R.C. 4112.02(L); Ohio Admin. Code 4112-5-08(D)(3). 

 

An accommodation is an adjustment to a job or work environment that enables the person to safely and substantially perform the job duties.  Ohio Admin. Code 4112-5-02(A).  Examples of reasonable accommodations include providing access to the job, restructuring the job, realigning duties, acquiring or modifying equipment or devices, revising job descriptions, or a combination thereof.  Ohio Admin. Code 4112-5-08(E)(2).  Job restructuring may involve, among other things, modified or part-time work schedules.  For instance, if a disabled person is required to have physical therapy during normal working hours, job restructuring may consist of modifying the person’s work schedule to allow the worker to make up time lost due to the therapy.  Ohio Admin. Code 4112-5-08(E)(2)(b). 

 

Complaints of violations of the Ohio Civil Rights Laws may be filed with the Ohio Civil Rights Commission, which will investigate and attempt to resolve the matter.  R.C. 4112.05.  The complaint must be filed in writing within six months of the discriminatory act.  R.C. 4112.05(B)(1).  But if the complaint is filed after the six-month deadline, the Ohio Civil Rights Commission will refer the complaint to the Equal Employment Opportunity Commission, since the federal agency has jurisdiction to accept complaints up to 300 days after the discriminatory act.  Relief ordered by the Commission can include, but is not limited to, reinstatement, upgrading of employment status, and back pay.  R.C. 4112.05(G).  The worker may also bring a civil action for damages, injunctive relief or other appropriate relief.  R.C. 4112.99.  The time limit for bringing suit is the six-year statute of limitations contained in R.C. 2305.07.  Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc. (1994), 70 Ohio St.3d 281.  It is unlawful for an employer to discriminate against an employee for opposing a discriminatory practice, filing a complaint or participating in an investigation under the Ohio Civil Rights Laws.  R.C. 4112.02(I). 

 

Rehabilitation Act of 1973

 

The Rehabilitation Act of 1973 (Rehabilitation Act) is a federal law prohibiting discrimination against qualified individuals with disabilities by federal agencies, federal contractors, participants in federal programs, and recipients of federal grants.  The definition of “qualified individual with a disability” is similar to the definition used under the ADA.  41 C.F.R. §60-741.2; 28 C.F.R. §§41.31 and 41.32.  See also 29 C.F.R. App. §§1630.1(a) and 1630.2(h). 

 

Section 503 of the Rehabilitation Act requires federal contractors (including subcontractors) having a contract in excess of $10,000 with a federal department or agency to “take affirmative action to employ and advance in employment qualified individuals with disabilities.”  29 U.S.C.S. §793(a).  Section 504 of the Rehabilitation Act prohibits discrimination against any qualified individual with a disability in any program or activity receiving federal financial assistance.  29 U.S.C.S. §794(a). 

 

The regulations under both statutes prohibit covered employers from denying any employment opportunity or benefit, or otherwise discriminating against a qualified individual with a disability, on the basis of the disability.  41 C.F.R. §60-741.21; 28 C.F.R. §41.52.  The regulations further require employers to provide reasonable accommodations to the known physical or psychological limitations of otherwise qualified applicants or employees with disabilities, unless the accommodations would impose an undue hardship on the employer’s business.  41 C.F.R. §60-741.21(f); 28 C.F.R. §41.53.  Reasonable accommodations are described in similar terms as in the ADA.  41 C.F.R. §60-741.2(v); 45 C.F.R. §84.12(b).

 

Congress has directed that in determining whether an employment practice violates the Rehabilitation Act, courts are to apply the same standards used in deciding complaints of discrimination under the employment provisions of the ADA.  29 U.S.C.S. §793(d); 29 U.S.C.S. §794(d).

 

The remedy for a violation of Section 503 is to file a complaint with the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor, which will investigate and attempt to resolve the matter.  The complaint must be filed within 300 days of the violation, unless the time is extended by the OFCCP for good cause shown.  41 C.F.R. §60-741.61.  If necessary, the OFCCP can seek injunctive relief, back pay, and other appropriate relief for aggrieved persons.  41 C.F.R. §60-741.65.  For a violation of Section 504, the party discriminated against may bring a lawsuit against the employer in state or federal court.  Elek v. Huntington Natl. Bank (1991), 60 Ohio St.3d 135, 139.  The two-year personal injury statute of limitations contained in R.C. 2305.10 governs the time within which the suit must be brought.  Martin v. Voinovich, 840 F.Supp. 1175, 1188 (S.D. Ohio 1993).  Recovery can include compensatory damages, back pay, reinstatement, injunctive relief and attorney fees.  29 U.S.C.S. §­794a.  Further, the federal agency or department funding the program or activity can take steps to cut off funding and otherwise compel the employer to comply with Section 504.  29 U.S.C.S. §794a(a)(2); 42 U.S.C.S. §2000d-1. 

 

Family and Medical Leave Act

     

The Family and Medical Leave Act (FMLA) is a federal law permitting an eligible employee to take, during a 12-month period, a total of 12 weeks of job-protected leave for “a serious health condition that makes the employee unable to perform the functions of the position of such employee.”[2] 29 U.S.C.S. §2612(a)(1)(D).  A “serious health condition” is an illness, injury, impairment, or physical or mental condition that either involves continuing treatment by a health care provider or inpatient care in a hospital, hospice or residential medical care facility.  29 U.S.C.S. §2611(11).  Because a serious health condition can be a temporary condition, many injured workers are protected by the FMLA.  The Code of Federal Regulations contains clear and detailed explanations of the rights of employees under the FMLA.  29 C.F.R. Part 825.

 

The FMLA applies to all public employers and to those private employers having 50 or more employees for each working day during each of 20 or more calendar weeks in the current or preceding year.  29 U.S.C.S. §2611(4).  Employees of these employers are covered if they have been employed at least 12 months by the employer and worked at least 1250 hours for the employer during the previous 12-month period.  29 U.S.C.S. §2611(2).  However, the FMLA does not apply to private employers having less than 50 employees within 75 miles of the worksite.  29 U.S.C.S. §2611(2)(B)(ii).

 

An employee who foresees a need to take FMLA leave should give the employer 30-days advance notice of the leave.  But if that amount of prior notice is not possible, the employee must provide as much notice as practicable under the circumstances, which ordinarily means notification at least one to two days after learning of the need for the leave.  29 U.S.C.S. §2612(e)(2)(B); 29 C.F.R §825.302.  The employer can also require the employee to provide certification from a health care provider regarding the need for the leave and its probable duration.  29 U.S.C.S. §2613.

 

When an employee takes FMLA leave, the employer must maintain coverage under any “group health plan” at the level and under the conditions that the coverage would have been provided if the employee had not gone on leave.  29 U.S.C.S. §2614(c)(1).  If coverage involves co-payments of premiums, the employer and employee may need to make arrangements for the employee to continue making co-payments during the leave.  In some instances, the employer may be able to recover its premiums paid during the leave, if the employee voluntarily fails to return to the job.  29 U.S.C.S. §2614(c)(2).

 

Upon returning from FMLA leave, the employee is entitled to be restored to the position of employment held when the leave commenced, or to be placed in an equivalent position having equivalent pay, benefits and other terms and conditions of employment.  29 U.S.C.S. §2614(a)(1).  The taking of FMLA leave shall not result in the loss of any employment benefit accrued prior to the leave.  29 U.S.C.S. §2614(a)(2).  There is an exception to the restoration rights for certain highly compensated employees.  29 U.S.C.S. §2614(b). 

 

The leave described in the FMLA is unpaid.  But the employee may elect, or the employer may require, that accrued vacation, sick leave and personal leave days be counted toward the 12 weeks of FMLA leave.  29 U.S.C.S. §2612(d)(2)(B).  An employer may also require that a workers’ compensation-related absence for a serious health condition be counted toward the 12-week FMLA entitlement.  29 C.F.R. §825.207(d)(2).  If the employer offers the employee a light-duty job that the employee is capable of performing, but the employee’s serious health condition still prevents performance of the previous job, the employee can decline the light-duty offer and remain on FMLA leave.  29 C.F.R. §825.207(d)(2).  Nonetheless, the refusal of the light-duty offer would disqualify the employee from further receipt of temporary total disability compensation.  R.C. 4123.56(A).

 

The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule when medically necessary because of the employee’s serious health condition. 29 C.F.R. §825.117.  In connection with those rights, it should be noted that State ex rel. Williams-Laker v. Indus. Comm. (1998), 80 Ohio St.3d 694, 697 held that an injured worker may be entitled to wage loss compensation for time missed from work to obtain medical treatment for a workplace injury.  The court also said, however, that the employee must prove that the treatment was medically necessary for the employee to perform the job, that the employee could not continue to work full time without the treatment, and that the treatment was only available during the employee’s hours of employment.  Under the FMLA, the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.  29 U.S.C.S. §2612(e)(2)(A). 

 

During the period of an intermittent or reduced leave schedule, the FMLA permits the employer to transfer the employee temporarily to an alternative position – having equivalent pay and benefits - that better accommodates recurring periods of leave.  29 C.F.R. §825.204.  But if the ADA, the Ohio Civil Rights Laws or the Rehabilitation Act applies, the employer may not transfer the employee to an alternative position if a reasonable accommodation would enable the employee to perform adequately in the regular position.      

 

The Wage and Hour Division of the U.S. Department of Labor investigates and attempts to resolve complaints made under the FMLA.  29 U.S.C.S. §2617(b).   Additionally, either that agency or the employee may bring an action in court for damages, injunctive relief (such as for reinstatement or promotion) and attorney fees.  29 U.S.C.S. §2617.  The employee need not file a complaint with the Wage and Hour Division and may file directly in court.  Any lawsuit must be brought within two years of the violation, unless the violation was willful, in which case the lawsuit may be brought within three years of the violation.  29 U.S.C.S. §2617(c).  The period for filing complaints with the Wage and Hour Division is “within a reasonable time” of the violation, but in no event may a complaint be filed beyond the deadlines for filing an action in court.  29 C.F.R. §825.401.  It is unlawful for an employer to interfere with the exercise of an employee’s rights under the FMLA, or to discriminate against an employee for invoking those rights or participating in an investigation under the FMLA.  29 U.S.C.S. §2615; 29 C.F.R. §825.220.

2 The FMLA also permits an eligible employee to take leave for the birth of a child and to care for the newborn child; for the placement of a child with the employee for adoption or foster care; and to care for a spouse, son, daughter or parent having a serious health condition.  29 U.S.C.S. §2612(a)(1).

 

Miscellaneous Remedies

 

Other causes of action that have been brought in connection with wrongful terminations of injured workers include: breach of employment contract, detrimental reliance on promises made by the employer (promissory estoppel), intentional infliction of emotional distress, and defamation.  Wasil, Waite & Mastrangelo, Ohio Workers’ Compensation Law (2002) 14-239, Section 14-345. 

 

Conclusion

 

Several state and federal laws protect injured workers from discrimination by their employers following workers’ compensation claims.  Some of the laws shield injured workers from retaliation.  Others require employers to accommodate the physical or psychological limitations of injured workers, such as by restructuring jobs, supplying equipment or devices, modifying work schedules, reassigning the employee to a vacant position, or allowing time off for recuperation or medical treatment. 

 

The legal protections provided by the anti-discrimination laws can greatly affect the livelihood, careers and peace of mind of many injured workers.  Moreover, an understanding of the laws can enable employers to avoid costly mistakes in dealing with injured workers. 

 

Thus, when BWC works with customers who are in situations where the anti-discrimination laws may apply, they can be helped immensely by being informed of the general requirements of the laws and the sources they can contact for additional assistance.  Legal Operations is available to assist other BWC departments in providing customers with information about these laws.

 

I trust that this information is useful to you.  If you have further questions or comments concerning this matter, please do not hesitate to contact me. 

 

 

                 

                             

                  Tom Sico

                  Director of Legal Operations

TS/JS/sls12-103