Excerpts From March 2006

Workers' Comp Reform ... at last!

On March 8, the Ohio Legislature finally passed the long-awaited workers' compensation reform bill. The bill was expected to pass last fall, but was derailed when the Tom Noe coin scandal broke. The new law, which goes into effect on June 26, 2006, makes some much-needed reform, not the least of which is curtailing "aggravation of pre-existing injury" claims. Many sections of this law address liberal court decisions over the past several years which have tortured the legislature's originally-enacted laws.

Mandatory Health Care?

By now, you have likely heard about the Maryland legislature's decision to force large employers (specifically WalMart) to provide health insurance to their employees. Think this won't affect you? Think again. In Ohio, two bills have already been introduced which would force employers to spend a minimum percentage of their payroll on health insurance for employees. As introduced, one bill would apply to employers with 30,000 or more employees in Ohio.

Self-Insured Employers Cannot Demand Repayment of TTD Paid in Error

Self-insured employers pay temporary total disability compensation (TTD) directly to their injured workers. In cases where the Commission orders payment of TTD which is later overturned, the employer can only collect the overpayment from future awards of compensation. The law provides specific procedures for collecting overpayments in such circumstances.

But, what can an employer do when it accidentally pays too much TTD, due to an administrative error? DaimlerChrysler found out the hard way that it cannot "unilaterally recoup an overpayment, which resulted from a clerical error, directly from a claimant via a personal check, money order, or payroll deduction.".

Liability for Employee's Porn Surfing

A New Jersey court recently ruled that an employer was negligent when an employee posted nude photos of his stepdaughter on the internet from work. The company had internet-monitoring software on the employee's computer, and his supervisor saw a list of inappropriate websites previously accessed by the employee. However, due to a mistaken belief that the company would violate the employee's privacy by continuing to monitor his web usage, it did nothing.

"Boy" Now a Racial Epithet!?

The U.S. Supreme Court recently ruled that terms used in the workplace may be discriminatory, even when the terms themselves are benign. Ash v. Tyson Food, Inc.

The Court stated that courts can consider other evidence of a speaker's meaning, such as "context, inflection, tone of voice, local custom, and historical usage." Based on this analysis, the Court stated a racial discrimination case could proceed against Tyson Foods based on the plant manager's referral to two African-Americans as "boy."

Responding to Requests for FMLA Leave

A decision by the U.S. Court of Appeals covering Ohio recently affirmed an employer's termination of an employee for failure to timely provide medical certification. Frazier v. Honda of America Mfg. Frazier alleged wrist problems prevented him from performing his regular job at Honda, so he requested a medical leave of absence. Honda orally requested that he provide medical certification of the need for leave. Honda then followed up with a letter stating that Frazier had 15 days from the date of the letter to provide the certification. The letter defined the date the letter was sent as day 1 of the 15-day notice period.

Frazier did not provide the requested medical certification until day 16, at which time he was suspended, and eventually terminated. The convoluted decision held that Honda could not count the day the letter was mailed as day one of the 15-day notice period (because the employee did not have actual notice on that date). However, the court ruled that the earlier verbal request for certification was sufficient to start the 15-day clock running, so the letter actually extended the amount of time by which Frazier had to return the certification form.