It has long been an established law that an Employer can not terminate an employee solely for pursuing his/her rights under the workers’ compensation statute. Up until recently, the law did not expressly prohibit retaliation against injured employees who had yet to file a claim.
However, a divided Ohio Supreme Court held last week that an employee has the right to sue an employer for wrongful discharge, even if a workers’ compensation claim has yet to be filed. In the case that was decided, an employee was terminated within one hour of his industrial injury. The employee filed a lawsuit alleging that the company had terminated him so he would not be considered an employee when he sought workers’ compensation benefits, in an attempt to preclude a claim against the company and avoid the premium hike that would go along with it. Chief Justice Maureen O’Connor specifically noted that, “a gap exists in the language of the statute for conduct that occurs between the time immediately following the injury and the time in which a claim is filed, instituted or pursued.” The Court, in a 4-3 opinion, held that the legislature did not intend to leave such a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ comepnsation benefits. Essentially, the Court has opened the door for individuals to have a right to sue an employer for wrongful discharge, even when the discharge occurs before the filing of a workers’ compensation claim.
While this is certainly a “win” for injured workers specifically and employees in general, most employers will not be so blatantly obvious as to terminate an employee right after an injury occurs. Often times an employer will search for a “legitimate” reason to terminate an employee, after the employee has been injured on the job (ex. excessive absenteeism, tardiness, etc.).
The Court held that state law prohibits employers from taking punitive action against an employee simply because they began workers’ compensation proceedings as a result of an injury.