Since the beginning of time it was “generally accepted,” Joan Verchot & Megan Roach of the Cincinnati office of law firm Dinsmore & Shohl recently wrote in the Workers’ Compensation Journal of Ohio, “that a claim could be terminated pursuant to a neutral attendance policy.” That all changed in 2003 when the Supreme Court delivered its opinion in Coolidge v. Riverdale Local School District, which, the authors said, “left employers in the untenable position of having to either indefinitely retain workers’ compensation claimants who were unable to perform their jobs, or face liability… and they’ve been wrestling with termination issues of that nature ever since” --- Until December 20, 2007, when the Court decided Bickers v. Western & Southern Life Insurance.
Coolidge revolved around a “continuing contract” teacher who had been assaulted and seriously injured by one of her students. Having exhausted assault leave, accumulated sick pay, and uncompensated medical leave for over a year, her “absence without leave” and continued inability to perform her duties were seen as constituting the “other good & just cause” provision under ORC §3319. 16, and her contract terminated.
The Coolidge Court said “An employee who is receiving temporary total disability compensation pursuant to ORC §4123. 56 may not be discharges solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition..” (Syllabus)
The Court in Bickers v. Western & Southern Life Insurance held, “An employee terminated from employment while receiving workers’ compensation has no common law cause of action for wrongful discharge in violation of the public policy underlying ORC §4123 .90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act.” (Syllabus)
The Court admitted that its “17-year history with the tort of ‘wrongful discharge in violation of public policy’ has been filled with fits & starts”… first being recognized in 1990 with Greeley v. Miami Valley Maintenance Contractors, Inc., two years later to be partially overruled, and then two years after that to be reinstated. One of the Court’s more recent holdings on the subject was Coolidge – which Bicker had relied on in his case.
The Court used the opportunity to revisit the case and “examined the boundaries of Coolidge, and held that it was limited to considerations of ‘good and just cause’ for termination under ORC §3319. 16 (but) does not create a claim of wrongful discharge in violation of public policy for an employee who is discharge while receiving workers’ compensation.”
The Bickers Court explained the distinction between the two cases further by “limiting Coolidge to holding that terminating a teacher for absences due to a work-related injury while the teacher is receiving workers’ compensation benefits is a termination without ‘good & just cause’ under RC § 3319.16, (but) it does not create a cause of action for an at-will employee terminated for nonretaliatory reasons while receiving workers’ compensation..”