ABSENTEEISM POLICIES GET MUCH NEEDED BOOST
FROM SUPREME COURT

By

Jerry P. Cline, Esq.

What do you do if your employee is absent from work for an extended period of time due to a workplace injury?  Must you hold open his or her position for an indefinite period of time?  What if you lack the ability to shift the duties of an injured employee to other employees?  Finally, when may Ohio employers hire permanent replacements? 

Under the recent Supreme Court decision of Bickers v. Western & Southern Life, employers may terminate employees who exceed the allowed absences under an employer’s neutral absenteeism policy even when the employee’s absence is due to a work-related injury.  This is a significant departure from the Court’s 2003 decision in Coolidge v. Riverdale that appeared to prohibit such terminations.

In Coolidge, a teacher was discharged for excessive absenteeism after she suffered a work-related injury and was temporarily and totally disabled for a significant period of time.  The teacher brought suit and won back her job on the grounds that her termination violated Ohio public policy.  In its decision, the Court appeared to bar employers from terminating employees for absenteeism when those absences are the result of the employee’s temporary and total disability that is due to a work-related injury.  Curiously, the decision appeared not to prohibit employers from terminating employees for excessive absenteeism when the absences were due to non-work related injuries. 

Effectively, under Coolidge, employers were denied the exercise of their employment-at-will prerogative and were effectively required to hold open the jobs of injured employees for an indefinite period of time.  In fact, since Coolidge, employers have been counseled not to terminate employees who are absent from work due to a work related injury. 

The Bickers decision provides much needed relief to Ohio employers by significantly narrowing the scope of Coolidge to absenteeism terminations of contract teachers only.  In effect, most Ohio employers are now free to implement nonretaliatory, neutral absenteeism policies that apply to all employees, injured or otherwise, and regardless of whether the injury took place at work or elsewhere.

Jerry Cline or David Andrews can assist you in drafting absenteeism and leave of absence polices that