Saturday, August 9, 2008

EMPLOYMENT LAW QUARTERLY | Summer 2008, Volume X, Issue iii

Download PDF

DISABILITY UPDATE – House Expands ADA Coverage Even if You Have a TPA

By George S. Crisci*

Congress recently passed a bill by a wide margin (402-17) that, if passed, would overturn Supreme Court precedent and broadly expand workers’ rights under the Americans with Disabilities Act (“ADA”). Supporters of the bill argue that the amendments to the ADA would provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

The amendments would operate to expand coverage under the ADA to include a greater amount of mental and physical impairments. First, the definition of disability would expand to prevent an employer from considering the impact of “mitigating measures” an employee might use to control his disability, e.g., (medication, prosthetics, or hearing aids, etc. that prior Supreme Court decisions allowed). Second, the definition would expand to include “episodic” disabilities or conditions that are in remission. Currently, disabilities include only those “physical or mental impairments that substantially limit one or more major life activities,” such as performing manual tasks, seeing, hearing, walking, standing, and thinking.

The amendments further would instruct courts to consider “substantially limits” in a broad sense. Previously, the Supreme Court had narrowed the definition of this term to a strict and demanding standard. The ADA’s potential amendments would render those decisions moot.

Finally, the amendments would allow for the Attorney General, the Equal Employment Opportunity Commission, and the Secretary of Transportation to issue regulations and guidance on how the amended definitions should be construed. Supporters of the amendments argue that this will provide for a nationwide mandate for the elimination of discrimination against individuals with disabilities by providing employers with guidance on how to follow and adhere to the ADA.

The potential amendments, if passed by the Senate and signed into law by the President, will go into effect on January 1, 2009. Practically, persons with conditions such as cancer, diabetes, and epilepsy – who before were not considered “disabled” – would be covered under the amended ADA. This expansion of coverage will likely open the door to more lawsuits against employers as the burden of proof for plaintiffs becomes more lax.

Employers should be aware of these possible changes to the ADA looming on the horizon and be prepared in the event the bill becomes law and they are required to provide additional employees with accommodations.

*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law. George represents employers in all facets of employment law, and both public and private sector management in actions before the NLRB. For more information concerning any labor or employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.


ESQUIRE BEWARE: Attorney Found Liable for Unauthorized Disclosure of Medical Records

By Lois A. Gruhin

The Ohio Supreme Court recently affirmed a lower court decision in favor of a Plaintiff whose medical records were released to an unauthorized party by the Defendant, his former wife’s divorce attorney. In Hageman v. Southwest General Health Center, the attorney – who gained access to the disputed medical records through discovery proceeding in the domestic relations matter involving the Plaintiff and his former wife – released a copy of the records to a County Prosecutor after the Plaintiff was charged with domestic violence. The Court held that the attorney could be found liable to the Plaintiff for her unauthorized disclosure.

In 2003, the Plaintiff began seeing a psychiatrist. Through the course of treatment, he admitted to having homicidal thoughts about his wife and was subsequently treated for bipolar disorder. When his wife filed for divorce, plaintiff filed a counterclaim seeking legal custody of the couple’s minor son. The wife’s attorney, thereafter, served subpoenas on the Plaintiff’s psychiatrist requesting his medical records and psychotherapy notes. Ultimately, the wife’s attorney received medical documentation from the Plaintiff’s psychiatrist.

At some point later, the Plaintiff was accused of assaulting his wife at home and was charged with domestic violence. On the day of trial, the prosecutor met with the wife’s attorney where the attorney shared the medical records containing the Plaintiff’s nefarious thoughts about his wife. The records were never used or entered into evidence and the Plaintiff was acquitted of all charges.

After entering into a separation agreement with his former wife, the Plaintiff filed suit against his psychiatrist, the psychiatrist’s hospital employer, his now ex-wife, and her attorney. The trial court granted summary judgment on behalf of every defendant, including the attorney. On appeal, the Court of Appeals affirmed for every defendant except the attorney on grounds that she had “overstepped her bounds … when she disseminated information regarding (the Plaintiff’s) psychiatric condition to the prosecutor.”

Affirming the lower court judgment, the Supreme Court held that while the Plaintiff had knowingly placed his medical condition into evidence during the custody proceeding, his implied authorization and waiver was limited to that matter and did not extend as a waiver to unauthorized disclosure to third parties, such as the prosecutor in the Plaintiff’s criminal trial.

The Court held that the public policy surrounding medical records confidentiality trumped a purported expansive waiver of privacy obtained during litigation. Privacy is vital, according to the Court, since the mere possibility of disclosure of sensitive records could impede successful treatment, especially in terms of psychotherapy, due to the possibility of embarrassment or disgrace. In terms of Plaintiff’s situation, the Court agreed that he might have been pressured into settling with his former wife due to the potential embarrassment of disclosure of his medical treatment.

Because an individual must be encouraged to seek such treatment, the Court held that any medical waiver is strictly limited to the particular litigation. Accordingly, an attorney who obtains medical records lawfully through the discovery process could be liable for later disclosure unrelated to the specific matter in which they were procured.

Before releasing any confidential or proprietary information about an employee, employers should carefully examine the potential use – and misuse – of that information and take adequate precaution to ensure that the records are kept confidential and used only for the limited stated purpose for which they were procured.

NO RETALIATION: Violating Privacy Policy Is Not Protected Activity

By Michael V. Heffernan

The Sixth Circuit Court of Appeals, in Niswander v. Cincinnati Insurance Company, recently held that a female claims adjuster, who was fired after she disclosed files containing customer names and other confidential company information to her attorneys pursuing an equal pay collective action, did not engage in “protected activity” under Title VII.

In 2003, Kathy Niswander opted into a collective action lawsuit against her employer, Cincinnati Insurance (“Cincinnati”), alleging that the company had discriminated against her on account of her sex in violation of the Equal Pay Act (“EPA”). After she joined the lawsuit, Niswander complained that she was being discriminated against in retaliation by her supervisors. Ultimately, in 2005, Niswander filed a separate Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that she had been retaliated against for engaging in protected activity; namely, joining the EPA lawsuit.

During the course of the EPA litigation, Niswander’s attorneys sent her a letter requesting that she “look around [her] house and office for any documents [she thought] might be remotely helpful to our case and send them in right away.” Her attorneys further requested documents from Niswander in response to Cincinnati’s discovery requests and warned her of the potential consequences of her failure to cooperate in discovery. In this letter, her attorneys requested “any documents related to (Niswander’s) employment” that she had not already submitted.

In response to the letters, Niswander provided many documents that she believed were relevant to Cincinnati’s alleged acts of retaliation, but admittedly had no documents supporting an EPA claim. Some of the documents produced by Niswander were claim-file documents that contained confidential information about Cincinnati policyholders. According to Niswander, she believed that since Cincinnati had made the discovery requests, this disclosure was allowed. When Cincinnati received the documents, however, they asserted that she had violated the company’s Privacy Policy, its Code of Conduct, and its Conflict of Interest Policy, all prohibiting the disclosure of policyholder information. In December 2005, Cincinnati terminated Niswander’s employment and Niswander filed a separate lawsuit alleging that her termination was retaliation for filing her Charge with the EEOC.

The Sixth Circuit affirmed the trial court’s grant of summary judgment on Niswander’s retaliation claim. The court held that Niswander’s delivery of the confidential documents was not reasonable as “participation” under Title VII because she admitted that the documents were not relevant to the claims in the lawsuit. The court applied the following six factors to determine whether Niswander’s act was reasonable under the opposition clause: (1) how the documents were obtained; (2) to whom they were produced; (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claims; (4) why the documents were produced; (5) the scope of the employer's privacy policy; and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.

The court held that Niswander knowingly violated the company’s policies when she searched through policyholder files to obtain evidence of Cincinnati’s alleged retaliation. The court held that most of the factors favored the policy and that Niswander could have made a record of the alleged retaliation without violating the policyholders’ privacy. The court reasoned that, rather than invade client files, Niswander could have made notes of Cincinnati’s conduct that she felt was retaliatory.

While this case is certainly a win for this employer, employers should take precaution when terminating any employee that is involved in a Title VII lawsuit and/or administrative proceeding against their company for an alleged violation of a company policy. Prior to taking an adverse employment action, employers should consider whether the employee’s conduct passes the balancing test recently established by the Sixth Circuit.

*Michael V. Heffernan regularly defends employers involved in employment litigation and in administrative hearings before the Equal Employment Opportunity Commission and various state administrative civil rights agencies.


TIMELINESS - Retaliation Can Accrue Past Termination

By Patrick J. Hoban*

A New Jersey appellate court recently held that an employer can be found liable for retaliation for conduct that occurs after the employee’s separation from his or her employment. In Roa v. LAFE (“Roa”), Fernando Roa and his wife, Lilliana Roa, alleged that they were discriminated and retaliated against by their former employer, LAFE, a distributor of “Hispanic Food Products,” and its Vice-President, Marino Roa.

Fernando and Lilliana alleged that Marino was engaged in a number of extramarital relationships with several female employees of LAFE. In February, 2003, when Marino’s wife discovered the relationships, in an attempt to shift blame for his conduct, Marino told his wife that Fernando was the one involved in the relationships. Initially, according to Fernando, he went along with the ruse in order to protect Marino, his superior, in an effort to save his job. Ultimately, however, Fernando came clean to Marino’s wife and confirmed Marino’s involvement in the affairs.

Following Fernando’s confession to Marino’s wife, Fernando and Lilliana allege that Marino engaged in a campaign of harassment against them. At one point, Fernando complained to upper-level management that Marino engaged in the sexual harassment of employees. Fernando’s complaint was rebuffed and Fernando (on October 12, 2003) and Lilliana (on August 24, 2003) were ultimately terminated, allegedly in retaliation for making the complaint about Marino’s conduct. The Roa’s filed their Complaint against LAFE and Marino Roa, under New Jersey’s Law Against Discrimination (“L.A.D.”), more than two years later, on November 5, 2005.

The Defendants argued that the Plaintiffs’ claims could not have accrued past the dates of their terminations. Thus, they argued, given the L.A.D.’s two-year limitations period, both Fernando and Lilliana’s claims were untimely. In response, Fernando and Lilliana alleged that LAFE improperly interfered with Lilliana’s unemployment benefits by indicating to the state unemployment commission that she had been fired for “misconduct,” resulting in Lilliana not receiving unemployment benefits until February 2004. The Roa’s further argued that LAFE improperly denied a medical insurance claim by terminating Fernando’s coverage on September 30, 2003, ahead of his discharge. They alleged that an early October 2003 claim that accrued during Fernando’s employment was not denied by the health insurer until November 11, 2003. Accordingly, they claimed that the limitations period accrued on November 11, 2003 for Fernando and February 2004 for Lilliana, within the two-year limitations period, as LAFE’s conduct in denying the medical claim and the unemployment claim was in retaliation for Fernando’s harassment complaint.

In their Reply brief, the Defendants countered that Fernando had to have known of his potential claim, at the latest in October 2003, because he had a lawyer negotiating the terms of his severance at the time of his discharge. With respect to Lilliana, they argued that she knew of the denial of her unemployment benefits not when she began to receive them (in February 2004), but rather on October 21, 2003, when the state unemployment commission issued a finding denying her claim. Accordingly, the Defendants maintained that Fernando and Lilliana’s claims were time-barred.

Although the trial court agreed with the Defendants, the appellate court reversed in part, finding that the Supreme Court decision of Burlington N. v. Sante Fe Ry. Co. (“Burlington”), which separated a substantive violation under Title VII from independent acts of retaliation that need not be related to the workplace, controlled. The court held that allegations of retaliation under the L.A.D. likewise were not confined to a plaintiff’s dates of employment. Rather, both Title VII and state law employment discrimination laws’ anti-retaliation provisions create separate and distinct causes of action and an employer’s continuing violation of these statutes could accrue after the employee’s termination. The Court found that the denial of Lilliana’s unemployment claim and the denial of Fernando’s medical insurance claim could be construed as continuing violations of Title VII and the L.A.D.’s anti-retaliation provisions.

The court ultimately upheld the dismissal of Lilliana’s claims, however, finding that she knew, at the latest, on October 21, 2003, that her claim for unemployment benefits had been denied. With respect to Fernando, conversely, the court held that he did not learn of the denial of his medical insurance claim until November 11, 2003, less than two years before he filed his Complaint, on November 5, 2005. Thus, the court allowed his claims to survive.

The Roa decision illustrates how courts likely will apply Burlington, finding that violations of Title VII or a state’s civil rights statutes’ anti-retaliation provisions can accrue after an employee’s termination date. When dealing with post-employment benefits such as health care coverage and/or unemployment claims, employers should carefully consider whether their conduct could be construed as a “continuing violation” of either the applicable state law against discrimination and/or Title VII, and extend the relevant limitations period.

*Patrick J. Hoban practices in all areas of labor and employment law, including employment discrimination and wrongful discharge. For more information on Title VII claims or any labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.


Z&R Shorts


Zashin and Rich Co., L.P.A. Named As Approved Counsel by Cincinnati Insurance

Cincinnati Insurance recently named Zashin and Rich Co., L.P.A. as “approved counsel” for employment practices liability insurance claims. In the event that your company has a claim under a Cincinnati Insurance policy (e.g., a demand letter, charge of discrimination or a lawsuit), simply ask your insurance broker to request Zashin and Rich Co., L.P.A. as defense counsel in the matter.

Zashin & Rich Co., L.P.A. Welcomes Mike Heffernan to its Growing Labor and Employment Group

Zashin & Rich recently welcomed Mike Heffernan to the firm and its expanding Employment and Labor Group. Mike defends employers in a wide variety of labor and employment matters, including harassment, discrimination, and federal and state civil rights. Mike received his undergraduate degree, cum laude, in Urban Affairs from Cleveland State University in 1998 and graduated from the Cleveland-Marshall School of Law in 2001, where he was Articles Editor for the Cleveland-Marshall Law Review. Prior to joining Zashin & Rich, Mike served as the Chief Judicial Attorney of the Cuyahoga County Court of Common Pleas.

Please join us in welcoming Mike to Z&R!

Upcoming Seminars
September 8, 2008
Steve Dlott and Patrick Watts will present the “Ten Biggest Leave of Absence/Return-To-Work Mistakes Aging Services Providers Make” to the Advocate of Not-For-Profit Services For Older Ohioans (“AOPHA”) 2008 Annual Conference and Trade Show, which will be held at the Greater Columbus Convention Center. Steve and Patrick will provide protocols and decision trees to assist health care organizations in the resolution of these complicated issues. For more information and/or to register, call (614) 444-2882.

September 24, 2008
Jon Dileno will be a panelist at the AMS Conference on Labor Arbitration at the Crowne Plaza, Cleveland City Centre Hotel on the subject of "Just Cause for Discipline and Discharge, the Basics.  The Perspective of the Employer and Union Representatives."

September 25, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on September 25, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.

September 10-13, 2008
George Crisci will be part of a panel discussion at the Labor & Employment Law Section of the American Bar Association’s 2nd Annual CLE Conference in Denver, Colorado from September 10-13, 2008. George will serve as a panelist for the “Negotiating Skills in Collective Bargaining” discussion that will focus on what works and what does not work in the context of labor negotiations and useful tools for working in the thicket of public sector bargaining.

October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.

Friday, August 8, 2008

25 Questions To Ask Yourself When Your Employee Calls In Sick On December 4, 2008!

*By Stephen S. Zashin, Esq. and Patrick M. Watts, Esq.

The Ohio Healthy Families Act (“OHFA”) likely will appear on the ballot on November 4, 2008. To prepare for drastic changes proposed by the OHFA, each Ohio employer must answer the following questions before it can even begin to understand its obligations and potential liabilities under the OHFA. The vote on OHFA is coming, and if it passes on November 4, Ohio employers must be prepared to navigate the new employment landscape it will create.

1. Which employers are required to comply with the OHFA?
All private employers with 25 or more employees must comply with the OHFA. All public employers must comply with the OHFA including the State and all of its political subdivisions regardless of their number of employees. R.C. 4114.01(B).

2. Are part-time employees included in the calculation to determine if an employer is covered by the OHFA?
Yes. The definition of employee includes part-time employees. Therefore, if a private employer employs 20 full-time employees and five part-time employees, the OHFA likely would cover the employer. R.C. 4114.01(B).  

3. Does the OHFA apply to temporary and leased employees?
Yes. The OHFA uses the definition of employees from the Fair Labor Standards Act (“FLSA”). Temporary employees and leased employees constitute employees under the FLSA.

4. How much PAID sick leave do employers have to provide their employees under the OHFA?
Employees who work 30 hours or more per week are entitled to at least seven PAID sick days per year. R.C. 4114.02(A)(1). Employees who work less than 30 hours per week (or less than 1,560 hours per year) are entitled to at least a pro rata amount of PAID sick leave. For example, an employee who regularly works 15 hours per week is entitled to at least 3.5 days of sick leave per year. R.C. 4112.02(A)(2).

5. How should an employer calculate the amount of leave an employee accumulates when the employee’s schedule and work hours vary?
For employees whose weekly schedule varies (e.g., temporary employees, seasonal employees, etc.), the OHFA requires employers to use the weekly average of hours worked over the preceding 12 weeks to determine the minimum amount of sick leave to which the employee is entitled. R.C. 4114.02(E).

6. How frequently must an employer provide new sick leave?
Sick leave must accrue at least monthly. R.C. 4114.02(B).

7. Does sick leave carry over from year to year?
Yes. The OHFA requires employers to carry over accumulated sick leave from year to year. R.C. 4114.02(C). However, the OHFA provides that employers are not required to permit an employee to “accumulate” more than seven sick days “per year.” R.C. 4114.02(C). It is unclear whether the OHFA entitles employees to use more than seven sick days per year. OHFA proponents contend that the OHFA does not require employers to permit employees to bank accumulated sick leave indefinitely. Rather, they contend that employees are entitled to carry over up to seven days of sick leave from year to year, but employers are not required to allow employees to accumulate more than seven accumulated but unused days of sick leave at any one time. Importantly, under Ohio’s rules of statutory interpretation, the OHFA proponents’ interpretations will not bind the courts.

To illustrate the issues raised by OHFA’s carry over provision, consider an employer having a 30-hour per week employee whose sick day accumulation commences on January 1, 2009. The employer has a policy which states that employees accumulate sick leave on the first day of every month. The employee will accumulate seven sick days through December 1, 2009. If this employee uses no sick leave in 2009, under the OHFA, all seven sick days will carry over to 2010 and be available for use. This employee likely will not accumulate any sick leave days on January 1, 2010, because employees cannot accumulate more than seven sick days within any consecutive 12 months. If between January 20-27, 2010, the employee uses all seven sick days, he or she will have no “accumulated” sick days. However, because sick days accumulate at least monthly, and under the employer’s policy on the first day of each month, the employee will accumulate .5834 sick days for use on February, 1, 2010. The employee could use sick days as the sick days accumulate. If that same employee did not use any sick leave through December, 2010, on December, 2, 2010, the employee would have accumulated 6.4174 sick days all of which he or she could use in December 2010. The chart below illustrates this example:

2010 (Month)
Jan.
Feb.
Mar.
Apr.
May
Jun.
Jul.
Aug.
Sep.
Oct.
Nov.
Dec.
Sick Days
Carried Over
From 2009
7











Sick Days
Earned
During Month
0
.5834
.5834
.5834
.5834
.5834
.5834
.5834
.5834
.5834
.5834
.5834
Sick Days
Used
During Month
7











Accumulated
Sick Days at
end of Month
0
.5834
1.1668
1.7502
2.3336
2.917
3.5004
4.0838
4.6672
5.2506
5.834
6.4174

Because the OHFA calculates sick leave accumulation based on a consecutive 12 month period and entitles an employee to carry over unused sick days from year to year, it appears that employees may use more than seven days in a calendar year (in the case above, 13.4174 days). Thus, despite using more than seven sick days in a calendar year, the employee in this example did not accumulate more than seven days in any consecutive 12 month period in accord with the provisions of the OHFA.

8. Can employees take leave in increments of leave smaller than a full day?
Yes. Employees may receive sick leave that is less than a normal workday. If employees are entitled to receive leave in an increment less than a normal workday, the leave is counted on an hourly basis, or in the smallest increment that the employer’s payroll system uses to track other absences or leaves, whichever is smaller. For example, if the employer tracks Family Medical Leave Act (“FMLA”) leave time in one-hour increments, then the employer must award and track sick leave in one-hour increments. R.C. 4114.02(D).

9. For what purposes may sick leave be used?
Under the OHFA, sick leave may be used for three purposes: (1) Employees may take sick leave for an absence resulting from his or her own physical or mental illness, injury, or medical condition. R.C. 4114.03(A)(1). (2) Employees may take sick leave for an absence resulting from his or her own obtaining professional medical diagnosis or care, or preventive medical care. R.C. 4114.03(A)(2). (3) Employees may take sick leave for an absence for the purpose of caring for a child, parent, or spouse who has any of the conditions, or needs diagnosis or care, as described in paragraphs (1) or (2). R.C. 4114.03(A)(3).

10. Are employers required to permit employees to use sick leave for elective surgery?
Unclear. Under the FMLA, employers are not required to provide FMLA leave to employees who undergo elective surgery. However, the OHFA does not state whether employers are required to provide sick leave to employees who undergo elective surgery. Elective surgeries may constitute a medical condition under the OHFA which would require employers to provide sick leave to employees who undergo elective surgeries. R.C. 4114.03(A)(1)-(3).

11. Are employees required to mention the “Ohio Healthy Families Act” when requesting sick leave?
No. When requesting sick leave, employees must state only (1) the reason for his or her absence; and, (2) the expected duration of his or her absence. R.C. 4114.03(C).

12. How much advance notice does an employee have to give to use sick leave?
Generally, employees should notify employers as soon as possible. If the employee knows at least seven days in advance of the need to use sick leave, then the OHFA requires employees to ask for sick leave at least seven days in advance. If the employee does not know of the need to use sick leave more than seven days in advance, then the OHFA requires employees to inform the employer as soon as possible. R.C. 4114.03(C).

13. Can an employer require an employee to provide a doctor’s note supporting the employee’s need for sick leave?
Only in limited circumstances. An employer can require an employee to provide a certification supporting the need for leave from a health care professional only if the duration of the leave is more than three consecutive work days. If the duration of the sick leave is three consecutive work days or less, then the employer may not require that the employee provide a doctor’s note. R.C. 4114.04(A).

14. If an employer requests a doctor’s note, when must the employee provide it?
Employees have up to 30 days from the first day of leave to provide the doctor’s note. R.C. 4114.04(B). This provision may limit an employer’s ability to require employees to return FMLA certifications within 15 days from the employer’s request.

15. How does the OHFA affect employers with collective bargaining agreements?
The OHFA has substantial ramifications for both private sector and public sector employers subject to collective bargaining agreements (“CBA”). The issues affected include: call-off procedures, certification procedures, independent medical examination procedures, return-to-work certifications, sick leave incentive provisions, employee evaluations, and employee disciplinary actions. Pursuant to R.C. 4117.10(A), it is likely that Ohio’s Public Employee Collective Bargaining Act (R.C. 4117.01 et seq.) supersedes the OHFA. However, under Ohio law, if a public employee CBA is silent regarding a right or entitlement created by the OHFA, it is possible that the OHFA’s terms will apply to covered public employees. Employers should review their specific CBA’s to make definitive determinations as to these issues.

16. May employers count sick leave against a no-fault attendance policy?
No. The OHFA prohibits employers from using paid sick leave as a negative factor or counting paid sick leave under a no-fault attendance policy. R.C. 4141.10(C)(2)-(3).

17. May employers count sick leave against an employee attendance bonus program?
Probably not. The OHFA prohibits employers from using paid sick leave as a negative factor. Counting paid sick leave absences against an employee attendance bonus program is similar to counting paid sick leave against a no-fault attendance policy. Therefore, an employer would likely violate this provision by counting a paid sick leave absence against an employee for purposes of an employee attendance bonus program.

18. Are employers required to pay out remaining sick leave at the end of an employee’s employment?
Not unless the employer’s policy requires it. The OHFA does not require that employees receive compensation for remaining sick leave when their employment ends. However, employers who elect not to pay out accumulated but unused sick leave should have a written policy which expressly states that the employer will not pay unused sick leave at the end of employment.

19. If the OHFA passes, when does it become effective?
If the OHFA passes, the majority of the provisions will become effective on December 4, 2008. See Ohio Constitution, Article II, Section 1b.

However, the OHFA suggests that one component of the OHFA may operate retroactively to the date of enactment, which would occur on November 4, 2008 (presuming that the OHFA passes). R.C. 4114.07(C). The OHFA specifically states that employers may not eliminate or reduce any type of leave in existence on the date of enactment. R.C. 4114.07(C). If the OHFA passes, the date of enactment will occur on November 4, 2008. Therefore, any employer who wishes to reduce the amount of any leave provided under its current policy should act before November 4, 2008.

20. Will a Paid Time Off (“PTO”) only leave policy violate the OHFA?
Probably. The OHFA states that employers are not required to modify a leave policy as long as the leave policy offers employees, at their discretion, the equivalent to the sick leave mandated in the OHFA. However, if an employee uses all of his or her PTO days for reasons unrelated to sick leave, it is unclear whether the employer must then provide an additional seven days specifically for sick leave. In addition, if the PTO leave accrues on an annual basis, rather than on a monthly basis, the failure to accumulate sick leave on a monthly basis also appears to violate the OHFA.

21. Should an employer update its employee handbook?
Yes, if the OHFA appears that it will pass. The OHFA and current leave of absence policies may affect other polices contained in the employer handbook, including: sick leave accumulation, sick leave use, call-off, attendance bonus, no-fault attendance, medical certification, independent medical examination, and FMLA leave policies (if applicable).

22. What does the OHFA prohibit employers from doing?
The OHFA prohibits employers from interfering with, restraining or denying the exercise of or attempted exercise of any rights established under the OHFA. Further, employers cannot discharge or discriminate against any employee for opposing an action that is made unlawful by the OHFA. R.C. 4114.10(B).

23. What damages are employees entitled to if an employer interferes with an employee’s rights under the OHFA?
Employees are entitled to any wages, salary or benefits denied as a result of the violation, or if no wages, salary or benefits were denied, other monetary losses suffered by the employee as a result of the violation. Employees are also entitled to interest on the amount awarded, treble damages based on the amount awarded, and reasonable attorneys’ fees. R.C. 4114.11.

24. How long do employees have to file a lawsuit for a violation of the OHFA?
Probably six years. Since the OHFA does not provide a statute of limitations or a limit on the time an employee may file a lawsuit, a default statute of limitations should determine the amount of time an employee has to file a lawsuit. Under Ohio law, the default statute of limitations for claims arising out of a violation of a statute is six years. R.C. 2305.07. [1]

25. As an employer, am I ready for the OHFA?
No. Not until you attend a free breakfast seminar provided by Zashin and Rich Co., L.P.A. on Thursday, September 18, 2008 from 9:00 a.m. to 12:00 p.m. Employers attending the seminar will gain knowledge on topics including, but not limited to:
  • leave of absence mandates;
  • which employees are entitled to leave;
  • what employees have to do to receive leave;
  • what information employers can request from employees;
  • how employers can protect themselves from liability under the proposed law;
  • what information employers have to provide employees;
  • what records employers have to maintain;
  • what can be done to manage the use of employee sick leave; and,
  • whether and how employers should change their leave of absence policies.
The seminar will occur at the offices of Zashin & Rich. This free seminar will also include a free continental breakfast. Limited seating is available. If you would like to make a reservation, or would like to receive more information, please contact Tammy Rhodes at 216-696-4441.

[1] The answers to these 25 questions are based on information now available. The answers to these questions do not constitute legal advice and may change based on events that take place between now and the election on November 4, 2008 or the effective date of the OHFA. Further, the OHFA charges the Ohio Department of Commerce with implementing clarifying regulations regarding the OHFA. These regulations, if promulgated, may also impact and change the above answers.

*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in both defending employers in leave of absence litigation and assisting employers with leave of absence compliance.

*Patrick Watts is an OSBA Certified Specialist in Labor and Employment Law with a focus on leave of absence litigation and compliance.

For more information about the OHFA or leave of absence policies, please contact Stephen Zashin (ssz@zrlaw.com) at 216.696.4441.