Excerpts from December, 2004

Christmas Presents from the Court and Legislature

It is great to end the year with good news, and this year I am excited that both the state legislature and the Ohio Supreme Court have provided me with such an opportunity!

Workers’ Comp. Representation

On Dec. 15, the Ohio Supreme Court issued its long-awaited decision on whether third party administrators (TPAs) could represent businesses before the Bureau of Workers’ Compensation (BWC) and the Industrial Commission (IC). As you may be aware, the Board of Commissioners on the Unauthorized Practice of Law issued a recommendation to the Court earlier this year which stated that TPAs should not be allowed to represent employers at hearings, file motions, or even advise employers when they should retain an attorney. Fortunately for Ohio businesses, the Supreme Court ruled that “non-lawyers who appear and practice in a representative capacity before the Industrial Commission and the Bureau of Workers’ Compensation in conformity to Industrial Commission Resolution No. R04-1-01 are not engaged in the unauthorized practice of law.”

Tort Reform

Last week, the state legislature passed a much-needed tort reform bill. SB 80, which is awaiting the Governor’s signature, limits the amount of punitive and non-economic damages which can be awarded. This new law will help Ohio employers remain competitive by lowering the cost of doing business in Ohio.

Protection from Frivolous Lawsuits

House Bill 498, which passed last week, redefines an intentional tort as one where the employer intends to injure the employee, or acts with a belief that injury is substantially certain to occur. This bill limits double dipping and punitive damage awards to only the most egregious situations – as it should be.

Intellectual Disabilities and the ADA

On October 20, 2004, the Equal Employment Opportunity Commission (EEOC) issued guidelines on the need to accommodate individuals with intellectual disabilities in the workplace. You are probably aware of your duty under the Americans with Disabilities Act (ADA) to accommodate employees with physical disabilities. But, have you considered your duty to accommodate employees with mental disabilities?

FMLA Update

Federal courts covering Ohio have recently issued two Family and Medical Leave Act (FMLA) opinions that may affect your business. In Roberts v. Owens Illinois, Inc., the court confirmed that an employer may count the time an employee spends doing “light duty work” as FMLA leave time.

In Hoge v. Honda, the court ruled that an employee returning from FMLA leave must be immediately reinstated to his original (or an equivalent) job. The court stated that an employer violates the FMLA when it requires an employee to take more medical leave than necessary.

What You Say Can and Will Be Held Against You:
What Are You Saying About Your Former Employees?

Ohio Revised Code § 4113.71 provides employers with qualified immunity for job references given for former employees. Therefore, your company generally cannot be sued for providing accurate, albeit negative, information about a former employee to that person’s prospective new employer. But at websites like BadReferences.com and References-Etc.com, your former employees are hiring certified court reporters to pose as potential future employers and call your company for reference checks. Your former employee then receives a report about what was said during the reference check.

I Think We’re Getting Sued-Quick Start the Shredder!
Or- How to Make A Bad Situation Worse.

E-mail, the internet, and other electronic communication devices continue to grow in importance in our everyday work and personal lives. As a result, there has been increasing use of electronic data in discovery. A recent case in federal court ruled that it is the shared responsibility of the client and its attorney to insure that at the time of discovery “all relevant information is discovered, retained, and produced.” As tempting as it might be to destroy e-mails, documents, or other evidence that might be used against you, doing so will likely cause more problems than it solves.

Can I Fire That Alcoholic Before He Causes Problems?

The Americans with Disabilities Act (ADA) protects qualified individuals with physical and/or mental disabilities from employment discrimination. However, the ADA does not protect those who are “disabled” due to ongoing illegal drug use, because they are not considered “qualified individuals”. Alcohol is not an illegal drug, but can potentially have equally severe effects on a person. So, where do non-recovering alcoholics fall in the ADA classification system?

Review Your Worker’s Compensation Files: Is There a Reimbursement Waiting to Be Discovered?

In 2000, in Sysco v. Industrial Commission, the Ohio Supreme Court ruled that a self-insured employer was entitled to seek reimbursement from the state's surplus fund for compensation overpaid to an injured worker. To prevent a run on the fund, the BWC granted such reimbursement only in cases in which a lower tribunal awarded compensation, and then a higher tribunal reversed the award (a so-called “straight-line appeal”). The BWC did not grant reimbursement in other situations, giving Sysco a very narrow application. In late July, the Ohio Supreme Court extended the reimbursement to non-straight line appeals.