*By Patrick J. Hoban
While employers have been busy thinking about "affordability" and "standard measurement periods" to ensure that they comply with the Patient Protection and Affordable Care Act (PPACA), the Department of Labor (DOL) has opened a new front in the PPACA compliance battle. Specifically, the Occupational Safety and Health Administration (OSHA) issued interim final rules addressing employee whistleblower and retaliation claims under PPACA Section 1558 on February 27, 2013 (Interim Rules).
The Interim Rules, which took effect upon publication, prohibit an employer from retaliating against an employee for, among other things, receiving a federal tax credit or subsidy to purchase insurance through a health insurance exchange; reporting a potential violation of the law's consumer-protection provisions (such as the prohibition on denying health coverage to individuals with pre-existing conditions) and/or assisting or participating in a related government proceeding or investigation. Beginning January 1, 2014, the Interim Rules will apply to insurers whether or not they employ the complaining employee. Similar to other rights created by the Fair Labor Standards Act (and enforced by most courts), employees may not waive the rights created under PPACA Section 1558 (i.e., they cannot be released by agreement).
To initiate a claim under the Interim Rules, employees must file a complaint with OSHA within 180 days of an alleged violation and OSHA will investigate the complaint. If OSHA finds reasonable cause for a violation, it will issue an order, including required remedial action. An employer may appeal and request a hearing before an administrative law judge (ALJ) within 30 days and may appeal an ALJ's decision to a Department of Labor "Administrative Review Board." An employer may also appeal a final administrative decision to a federal court of appeals. If there is no final administrative decision within 210 days of the filing of an employee complaint, the employee may initiate an action in federal district court and obtain a jury trial.
A recently issued OSHA fact sheet concerning the Interim Rules lists potentially retaliatory employer actions as including: termination or layoff; "blacklisting;" demotion; denial of overtime or promotion; discipline; denial of benefits; failure to hire; intimidation; threats; and reduction of pay or hours. Claims made under these provisions will be analyzed under the familiar burden shifting standard applied to employment discrimination, and retaliation claims. The Interim Rules provide for remedies including back pay, front pay, compensatory damages, and reinstatement.
As PPACA's full-implementation date of January 1, 2014 draws closer, employers must ensure that they consider this new source for potential liability as they do existing employment laws prior to acting.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about PPACA or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Monday, April 22, 2013
Tuesday, April 16, 2013
When Breaking the Rules Means Never Having to Say You're Sorry: Ohio Supreme Court reaffirms the rights of employees behaving badly to workers' comp benefits
*By Scott Coghlan
The Ohio Supreme Court recently confirmed that getting fired for violating a work rule that will, in fact, get you fired if you violate it, and does, in fact, get you fired, should not, however, keep you from getting compensated for your injury. Make sense?
We don’t think so either.
Let’s rewind. Temporary total disability, or “TTD,” is provided to compensate an injured worker who is totally disabled from work for lost wages on a temporary basis due to the work-related injury or occupational disease. To qualify for TTD, an injured worker must show that he is medically unable to return to work and that his injury is the reason for his loss of earnings. When an employee violates a work rule that he knows is a terminable offense, however, the employee is said to have “voluntarily abandoned” his employment and is precluded from receiving TTD benefits.
But in State ex rel. Haddox v. Industrial Commission of Ohio, the Ohio Supreme Court confirmed that an injured worker does not “voluntarily abandon” employment when the violation of a dischargeable offense occurs prior to or contemporaneous with the injury itself.
Forest City Technologies, Inc. employed Haddox as a truck driver. On December 20, 2005, Haddox was involved in his third motor vehicle accident within one year. As a result, Forest City’s liability insurance carrier would no longer cover Haddox, and Forest City terminated his employment.
Haddox filed for TTD benefits from the date of injury forward. Forest City opposed Haddox’s request for TTD, arguing that he voluntarily abandoned his employment by violating company policy that required termination for a third traffic violation. In essence, Forest City argued that Haddox would have sustained a loss of earnings regardless of his injury because he was uninsurable following his third motor vehicle accident.
The Ohio Supreme Court rejected Forest City’s argument, relying on its 2006 decision in State ex rel. Gross v. Industrial Commission, which made headline news at the time. In Gross, a Kentucky Fried Chicken employee burned himself and several co-workers when he placed water in a pressurized deep fryer, heated the fryer, and opened the lid. The company terminated his employment for violating a work safety rule and for defying multiple verbal warnings to avoid the very act that led to his injury. The Court rejected the voluntary abandonment argument and held that when an injured worker is injured by the same misconduct that led to his or her termination, he remains eligible for TTD benefits.
In its 4-3 decision on Tuesday, the Court reaffirmed Gross, holding that Haddox’s actions [the motor vehicle accidents] prior to and contemporaneous with his industrial injury cannot form a basis to conclude that he voluntarily abandoned his employment.
Justice O’Connor authored a strongly worded concurring opinion reminding all that she vehemently dissented from the majority decision in Gross. Justice O’Connor feistily concurred only “because I must” based on the Court’s prior decisions. She further noted that the Court appears to “have no will” to overrule Gross and that the remedy must therefore come from the legislative branch.
The refusal to apply the voluntary abandonment rule and bar TTD benefits in situations similar to Haddox continues to rile employers. This is particularly true when an injury occurs as a result of an employee working while under the influence of drugs or alcohol. According to Haddox, Gross and a litany of other Ohio Supreme Court decisions, an intoxicated injured employee can receive TTD benefits because the intoxication occurs before or contemporaneously with the injury. This is true even though the injured employee knows he will be terminated based on a positive drug test and his loss of earnings results from committing a terminable offense. Will a remedy to this incongruous result come from the legislative branch, as Justice O’Connor suggested? Only time will tell.
*Scott Coghlan, Chair of Z&R’s Workers’ Compensation Group, has extensive experience with all aspects of safety and health matters and workers’ compensation law. If you have any questions regarding the Haddox decision, how to lessen its impact, or other issues related to managing and defending your workers’ compensation claims, please contact Scott (sc@zrlaw.com) 216.696.4441.
The Ohio Supreme Court recently confirmed that getting fired for violating a work rule that will, in fact, get you fired if you violate it, and does, in fact, get you fired, should not, however, keep you from getting compensated for your injury. Make sense?
We don’t think so either.
Let’s rewind. Temporary total disability, or “TTD,” is provided to compensate an injured worker who is totally disabled from work for lost wages on a temporary basis due to the work-related injury or occupational disease. To qualify for TTD, an injured worker must show that he is medically unable to return to work and that his injury is the reason for his loss of earnings. When an employee violates a work rule that he knows is a terminable offense, however, the employee is said to have “voluntarily abandoned” his employment and is precluded from receiving TTD benefits.
But in State ex rel. Haddox v. Industrial Commission of Ohio, the Ohio Supreme Court confirmed that an injured worker does not “voluntarily abandon” employment when the violation of a dischargeable offense occurs prior to or contemporaneous with the injury itself.
Forest City Technologies, Inc. employed Haddox as a truck driver. On December 20, 2005, Haddox was involved in his third motor vehicle accident within one year. As a result, Forest City’s liability insurance carrier would no longer cover Haddox, and Forest City terminated his employment.
Haddox filed for TTD benefits from the date of injury forward. Forest City opposed Haddox’s request for TTD, arguing that he voluntarily abandoned his employment by violating company policy that required termination for a third traffic violation. In essence, Forest City argued that Haddox would have sustained a loss of earnings regardless of his injury because he was uninsurable following his third motor vehicle accident.
The Ohio Supreme Court rejected Forest City’s argument, relying on its 2006 decision in State ex rel. Gross v. Industrial Commission, which made headline news at the time. In Gross, a Kentucky Fried Chicken employee burned himself and several co-workers when he placed water in a pressurized deep fryer, heated the fryer, and opened the lid. The company terminated his employment for violating a work safety rule and for defying multiple verbal warnings to avoid the very act that led to his injury. The Court rejected the voluntary abandonment argument and held that when an injured worker is injured by the same misconduct that led to his or her termination, he remains eligible for TTD benefits.
In its 4-3 decision on Tuesday, the Court reaffirmed Gross, holding that Haddox’s actions [the motor vehicle accidents] prior to and contemporaneous with his industrial injury cannot form a basis to conclude that he voluntarily abandoned his employment.
Justice O’Connor authored a strongly worded concurring opinion reminding all that she vehemently dissented from the majority decision in Gross. Justice O’Connor feistily concurred only “because I must” based on the Court’s prior decisions. She further noted that the Court appears to “have no will” to overrule Gross and that the remedy must therefore come from the legislative branch.
The refusal to apply the voluntary abandonment rule and bar TTD benefits in situations similar to Haddox continues to rile employers. This is particularly true when an injury occurs as a result of an employee working while under the influence of drugs or alcohol. According to Haddox, Gross and a litany of other Ohio Supreme Court decisions, an intoxicated injured employee can receive TTD benefits because the intoxication occurs before or contemporaneously with the injury. This is true even though the injured employee knows he will be terminated based on a positive drug test and his loss of earnings results from committing a terminable offense. Will a remedy to this incongruous result come from the legislative branch, as Justice O’Connor suggested? Only time will tell.
*Scott Coghlan, Chair of Z&R’s Workers’ Compensation Group, has extensive experience with all aspects of safety and health matters and workers’ compensation law. If you have any questions regarding the Haddox decision, how to lessen its impact, or other issues related to managing and defending your workers’ compensation claims, please contact Scott (sc@zrlaw.com) 216.696.4441.
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