I Overview of Ohio Workers’ Compensation A DEFINITIONS AND COMPLIANCE REQUIREMENTS 1 Definition of Employer Ohio Revised Code §4123 01 B 1 the state i

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I Overview of Ohio Workers’ Compensation A DEFINITIONS AND COMPLIANCE REQUIREMENTS 1 Definition of Employer Ohio Revised Code §4123 01 B 1 the state i Powered By Docstoc
					I.   Overview of Ohio Workers’ Compensation

A.   DEFINITIONS AND COMPLIANCE REQUIREMENTS

     1.   Definition of Employer

          Ohio Revised Code §4123.01(B)

          (1) the state, including state hospitals, each county, municipal corporation,
          township, school district, and hospital owned by a political subdivision or
          subdivisions other than the state;

          (2) every person, firm, and private corporation, including any public service
          corporation, that (a) has in service one or more employees regularly in the same
          business or in or about the same establishment under any contract of hire,
          express or implied, oral or written, or (b) is bound by any such contract of hire or
          by any other written contract, to pay into the insurance fund the premiums
          provided by this chapter.

     2.   Definition of Employee

          Ohio Revised Code §4123.01(A)

          (1)(a) every person in the service of the state or of any county, municipal
          corporation, township, or school district therein, including regular members of
          lawfully constituted police and fire departments of municipal corporations and
          townships, whether paid or volunteer, and wherever serving within the state or
          on temporary assignment outside thereof, and executive officers of boards of
          education, under any appointment or contract of hire, express or implied, oral or
          written, including any elected official of the state, or of any county, municipal
          corporation, or township, or members of boards of education;

          (b) every person in the service of any person, firm, or private corporation,
          including any public service corporation, that (i) employs one or more persons
          regularly in the same business or in or about the same establishment under any
          contract of hire, express or implied, oral or written, including aliens and minors,
          household workers who earn one hundred sixty dollars or more in cash in any
          calendar quarter from a single employer, or (ii) is bound by any such contract of
          hire or by any other written contract, to pay into the state insurance fund the
          premiums provided by this chapter.

          (2) employee does not mean

          (a) a duly ordained, commissioned, or licensed minister or assistant or associate
          minister of a church in the exercise of his ministry; or
          (b) any officer of a family farm corporation.

     3.   Definition of Injury Ohio Revised Code §4123.01(C)

                                                                                                 1
                  Injury includes any injury, whether caused by external accidental means or
                  accidental in character and result, received in the course of, and arising out of,
                  the injured employee’s employment. Injury does not include:

                  (1) psychiatric conditions except where the conditions have arisen from an injury
                  or occupational disease;
                  (2) injury or disability caused primarily by the natural deterioration of tissue, an
                  organ, or part of the body;
                  (3) injury or disability incurred in voluntary participation in an employer-
                  sponsored recreation or fitness activity if the employee signs a waiver of his right
                  to compensation or benefits under this chapter prior to engaging in the
                  recreation or fitness activity.

         4.       Definition of Occupational Disease Ohio Revised Code §4123.01(F) see also
                  Ohio Revised Code §4123.68 for scheduled diseases

                  a disease contracted in the course of employment, which by its causes and the
                  characteristics of its manifestation or the condition of the employment results in
                  a hazard which distinguishes the employment in character from employment
                  generally, and the employment creates a risk of contracting the disease in
                  greater degree and in a different manner from the public in general.

B.       OHIO’S BENEFIT SCHEME

         1.       TYPES OF COMPENSATION AND ELIGIBILITY DETERMINATION

                  a.       TEMPORARY TOTAL DISABILITY

                           •        Cannot return to former position of employment - temporarily

                           •        Eligibility begins on the 8th consecutive day of disability; payment
                                    for the first 7 days will be made on the 15th consecutive day of
                                    disability

                           •        No limit to benefits

                           •        Payment structure based as follows:
                                        first 12 weeks payable at 72% of the "full weekly wage" 1


              1

 The full weekly wage is computed by taking the higher figure of wages for either the six weeks prior to the
injury with overtime, or the week prior, without overtime. Payment is made at 72% of the higher of the two
figures.



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                            2
                                            remaining weeks payable at 66-2/3% of the average weekly
                                             wage

                           •        Weekly benefits cannot exceed statewide annual maximum ($589
                                    per week for 2000)

                           •        Percentage reduction not applicable below statewide minimum
                                    wages ($294.50 per week for 2000)

                  b.       PERMANENT PARTIAL DISABILITY COMPENSATION

                           •        Compensation for "permanent", residual impairment of workplace
                                    injury

                           •        Eligibility commences 40 weeks following injury OR return to work
                                    if more than 7 days was lost due to injury

                           •        Injured workers are compensated for impairment based on
                                    percentage of loss to the "body as a whole". "Impairment" is
                                    determined by physician selected by the Bureau of Workers'
                                    Compensation following physical examination and utilization of
                                    the AMA guidelines.

                           •        Compensation is made at the rate of 2 weeks for every percentage
                                    of impairment, not to exceed the statewide annual maximum
                                    ($196.33 per week for 2000)

                           •        Injured workers are eligible for increases in permanent partial
                                    disability awards based on medical evidence demonstrating
                                    increased impairment. There is no waiting period for requesting an
                                    increase award.

                           •        There is a lifetime maximum of 100% permanent partial disability
                                    compensation available per person - NOT per claim.

                  c.       Permanent Partial Disability - Amputational Awards

                           •        Where an injury results in an amputation or loss of use of a
                                    particular body part, the injured worker is entitled to a scheduled
                                    award for that loss. See Appendix A.

                           •        Amputational loss awards may also be available for ankylosis

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                       3
                                    (permanent stiffness) of the joints of any of the fingers of either
                                    hand.

                  d.       Permanent Total Disability (PTD)

                           •        Where an injury causes an employee to be unable to engage in
                                    sustained, remunerative employment, that employee may be
                                    eligible for permanent total disability compensation.

                                            Statutory PTD
                                             Automatically granted upon request where an injured
                                             worker has suffered an amputational loss of two or more
                                             body parts (not including individual fingers)

                                            Stephenson Factors
                                             The injury must render the employee unable to engage in
                                             permanent, sustained, remunerative employment.
                                             However, other factors can be considered in determining
                                             whether an employee can find work despite the industrial
                                             injury. These "Stephenson" factors include:

                                                  age

                                                  other medical issues (i.e., heart disease)

                                                  work experience & qualifications

                                                  education

                           •        There is no waiting period for pursuing PTD benefits

                  e.       Wage Loss Compensation

                           •        When an injury prevents a person from returning to work
                                    following an industrial injury, to a position other than his former
                                    position of employment, that person may be eligible for wage loss
                                    compensation.

                           •        The employee must be released to light duty or restricted duty
                                    work by the attending physician.

                           •        The employee must suffer an actual loss in earnings.


8 Crosby, O=Brien & Associates Co., LPA (2000)                                                       4
                                            Working Wage Loss
                                             The employee returns to work other than his or her former
                                             position of employment.

                                                   work must be consistent with employee's earning
                                                    capacity (i.e. credentials & training)

                                            Non-working Wage Loss
                                             The employee cannot find work consistent with his
                                             capabilities and the restrictions imposed by the attending
                                             physician.

                                                   employee must register with the Ohio Bureau of
                                                    Workers' Compensation.

                                                   employee must search for work consistent with his
                                                    or her physical limitations.

                           •        Wage loss compensation is paid at the rate of 66-2/3% of the actual
                                    difference in compensation, not to exceed the statewide annual
                                    maximum.

                           •        There is no waiting period for pursuing wage loss compensation.

                           •        Wage Loss Compensation is only available for 200 weeks, per
                                    injury.

                  f.       Death Benefits

                           •        Where an injury is the proximate cause of an employee's death,
                                    benefits are payable at 66-2/3% of the employee's earnings at the
                                    time of the injury, to his or her dependents.

                                            There is a presumption of dependency for legal spouses
                                             and unemancipated children. Must present marriage
                                             certificate and birth certificates, respectively.
                                            If no presumption exists, claimants must present actual
                                             proof of dependency.

                           •        Children are eligible to receive benefits until they become
                                    emancipated (age 18 or at the conclusion of college).

                           •        Spouses are eligible to receive benefits so long as they do not

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                       5
                                    remarry. Upon remarriage, the claimant-spouse will receive a
                                    lump sum payment equivalent to two (2) years of benefits. EXCEPT
                                    however, if children remain unemancipated. In that event,
                                    benefits will continue, reapportioned, to the children until the age
                                    of majority.

                           •        All other dependents are eligible to receive benefits for the
                                    remainder of their lives.

                           •        Benefits cannot exceed the statewide maximum, despite the
                                    number of heirs. Benefits are apportioned as follows: 1/3 to the
                                    spouse and the remaining 2/3 apportioned to other dependents. If
                                    any recipient becomes ineligible for continued receipt of benefits,
                                    their apportioned amount will be re-apportioned among the
                                    remaining eligible recipients.

                           •        Funeral expenses are payable at a maximum of $3,200.

                           •        If an injured work does not die immediately following the injury, he
                                    or she is entitled to all benefits available in standard injury cases
                                    up until the time of death.

C        EMPLOYER ACTIONS THAT CAN SAVE CLAIM DOLLARS

         1.       Safety Audits

                  •        Bureau of Workers' Compensation Safety & Hygiene

                  •        OSHA

                  •        Independent audit company

                  •        Ergonomic audits

         2.       Drug Testing
                  The Drug Free Workplace Act and numerous other federal mandates continue to
                  permit employers to conduct drug testing:

                  •        as a pre-employment screening

                  •        upon reasonable suspicion

                  •        uniformly, post-injury

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                         6
                  •        randomly

                  Since there are very few rights available to employers, every employer should
                  avail itself of the drug testing privilege, utilize it and react to it! Ohio Revised
                  Code '4123.01 precludes drug induced injuries from the definition of compensable
                  events.

         3.       Rehabilitation & Cost-Containment Measures

                  •        Physical Rehab

                  •        Vocational Rehab

                  •        Medical Management


         4.       Claim Investigation

                  a.       The Contested Claim

                           Typically, employers contest workers' compensation claims for three
                           reasons:

                           •        there was no work-related incident

                                            no witnesses
                                            no physical evidence of incident
                                            time, place and manner issues

                           •        there was no injury

                                            no evidence of physical trauma
                                            no mention of physical injury contemporaneous with event
                                            no medical treatment contemporaneous with event

                           •        there was an incident or there was an injury but the two are not
                                    related

                                            pre-existing conditions
                                            the weekend injury

                           The basis for contesting the claim should dictate the manner and type of

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      7
                           claim investigation. Not infrequently, an employer will discover through
                           the use of ordinary investigative techniques that both the incident and the
                           injury are questionable.

                  b.       What Every Contested Claim Investigation Should Include

                           The Ohio Revised Code and in particular, the Workers' Compensation Act
                           permit employers wide latitude in conducting investigation on workers'
                           compensation matters. Ohio Revised Code '4123.651(C) permits Ohio
                           employers to require injured workers' to execute medical releases. Ohio
                           Revised Code '2317.02 prohibits medical providers from withholding
                           medical information about their patients who have pursued claims,
                           including workers' compensation claims.

                           Additionally, every claim investigation should include the following:

                           •        Completion of an employee and management claim investigation
                                    report

                           •        Execution of a medical release

                           •        Post-injury drug screen

                           •        Investigation of historical claims through the Bureau of Workers'
                                    Compensation public access line

                           •        Investigation of other personal injury actions or civil litigation
                                    through the local county common pleas court                (public
                                    information)

                           •        Obtain a drivers' abstract from the Ohio Bureau of Motor Vehicles

                           •        Pursue medical records from the physician of record in the claim;

                           In some instances, as circumstances dictate, the employer should utilize
                           other investigative techniques, which may include the following:

                           •        Pursue medical records from all medical providers who have ever
                                    treated the injured worker

                           •        Retain a private investigator

                           •        Conduct surveillance.

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      8
                  c.       Investigating The Incident

                           When an employer contests that an incident occurred at work, the focus
                           of the investigation should be directed at addressing the allegations of
                           the occurrence. The investigation should include:

                           •        Incident reports from the injured worker and the supervisor

                           •        Witness statements, including statements from individuals who
                                    should have been witnesses but did not see or hear anything;

                           The investigation may also include:

                           •        Time cards

                           •        Job, mileage or activity logs


                  d.       Investigating the Injury

                           In determining whether an employee was injured on the job, two issues
                           will be important. The first issue is whether there is any visible sign of
                           trauma contemporaneous with the alleged event. The second issue is
                           whether there is any medical confirmation of injury or trauma,
                           contemporaneous with the alleged event.

                           This kind of investigation is important where an event may have occurred
                           (slipping on a substance on the floor) but there is no reason to believe
                           that an employee was injured from it. The investigation should include:

                           •        Witness statements from co-workers

                           •        Dispensary records, if any

                           •        Medical records from primary care provider

                           Additionally, the issue of pre-existing and post-traumatic, intervening
                           injuries may be important in defending a claim. In those instances, the
                           following additional records are important:

                           •        Medical records from all providers

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                     9
                           •        Investigation into other potential sources of injury:

                                            OBMV
                                            Courts
                                            BWC
                                            Canvass area hospitals in region where employee lives or
                                             has lived

                  e.       The Continuing Disability Claim

                           In defending a continuing disability claim the employer should focus its
                           attention on the following factors:

                           •        What are the allowed conditions in the claim?

                           •        What is causing the present disability?

                           •        Has the injured worker sustained any intervening traumas or
                                    illnesses that could account for present disability?

                           •      Despite medical documentation supporting disability, is the injured
                                  worker capable of engaging in activities consistent with gainful
                                  employment?
                           The investigation on these issues should include:

                           •        Updated investigation of historical claims through the Bureau of
                                    Workers' Compensation public access line (the injured worker may
                                    have had new claims!)

                           •        Updated investigation of other personal injury actions or civil
                                    litigation through the local county common pleas court (public
                                    information)

                           •        Updated drivers' abstract from the Ohio Bureau of Motor Vehicles

                           •        Supplemental medical records from the physician of record in the
                                    claim

                           In some instances, as circumstances dictate, the employer should utilize
                           other investigative techniques, which may include the following:

                           •        Supplemental medical records from all medical providers who

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                    10
                                     have ever treated the injured worker

                             •       Private investigation or surveillance

                     f.      Wage Loss Compensation Claims

                             The investigation into defending these cases typically involves:

                             •       Receive confirmation from OBES that the injured worker has
                                     registered

                             •       Contact employers with whom the injured worker claims to have
                                     pursued employment

                             •       Pursue updated medical records from the physician supporting
                                     disability

                             •       Possible surveillance

         5.          Attend Hearings & Litigation

                     a.      Use of Court Reporters

                             The Industrial Commission of Ohio does not provide any written
                             transcript of the proceedings before it. However, parties to a
                             particular claim are permitted to utilize court reporters so long as
                             they:

                             •       Advise the Industrial Commission of Ohio, in writing, of intent to
                                     use court reporter, in advance of the hearing. (Only attorneys
                                     permitted to practice law are permitted to use court reporters)

                             •       Request additional time, if needed.

                             •       File a copy of the transcript, following the hearing.

                     b.      Filing and Presentation Requirements of Evidence

                             Industrial Commission regulations require that evidence be filed
                             with the Industrial Commission and provided to the opposing
                             parties, reasonably in advance of the hearing.2

              2
                  Separate requirements exist for adjudication of PTD applications.

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      11
                  c.       Filing Requirements and Presentation of Videotape

                           Must be filed 2 weeks prior to the hearing, with a copy to the
                           opposing party. The videotape must be accompanied by an
                           investigative report. It is the presenting party's requirement to
                           provide equipment for viewing videotape presentations.

         6.       Settlement

                  a.       Why Settle a Claim

                           •        Limit or eliminate future claim(s) exposure.

                                            Reserves & premiums
                                            Potential for future claims & actions

                           •        Eliminate other potential liability related to the
                                    employment relationship.

                           •        Settlement proceeds are not considered part of
                                    compensation paid regarding self insured
                                    assessments.

                  b.       Information To Evaluate

                           •        Determine Personal Data

                                            Age
                                            Education
                                            Family issues
                                            Prior work history
                                            Medical issues

                           •        Conditions

                                            Identify allowed conditions.
                                            Identify other conditions at issue.
                                            Identify potential future conditions.




8 Crosby, O=Brien & Associates Co., LPA (2000)                                                 12
                           •        Benefits

                                            Calculate benefits received (medical and compensation
                                             benefits).
                                            Calculate potential future benefits (medical and
                                             compensation benefits). *This includes determining
                                             probability of success in receipt of future benefits.

                           •        Other Workers' Compensation Claims or Sources of Income

                           •        Company Policy

                  c.       Settlement Strategy

                           •        GOAL: Place claimant and opposing counsel at risk.

                           •        METHODS:

                                            Appeal all allowance issues or other '4123.512 issues into
                                             court.

                                            Develop plan to terminate existing benefits.

                                            Develop claim issues that will support writ of mandamus
                                             actions.

                                            Develop claim issues that are appealable into the court of
                                             common pleas.

                                            Consider extraordinary options like pursuing fraud
                                             remedies.

                  d.       Settlement Options

                           •        Settlement includes all other claims unless excluded.

                           •        Voluntary resignation
                                    See General Elec. Co. v. Bina, 1989 Ohio App. LEXIS 2872 (Cuyahoga
                                    County July 20, 1989). Resignation as a settlement term is
                                    acceptable and the Industrial Commission of Ohio does not have
                                    to approve the aspect of settlement because it is not related to
                                    plaintiff's right to participate in the workers' compensation
                                    system.

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      13
                           •        Agree to disallow occupational disease claims

                                            There must be evidence supporting disallowance.

                                            Employer will usually have to waive the right of surplus
                                             fund reimbursement.

                           •        Obtain contribution from other employers based on other claims

                           •        Structured settlements

                           •        Future conditions
                                    See McHenry v. Mihm, No. 2829 (Clark County Court of Appeals
                                    April 13, 1992). The court determined that claimants cannot
                                    release future injuries and settlement can bar a claimant from
                                    receiving benefits “for an injury non-existent at the time of the
                                    settlement agreement” but the claimant can release future claims
                                    involving the extent of the disability associated with the “past
                                    injury.

                           •        Dismiss VSSR applications

D.       SIMPLE FRAUD REDUCTION TECHNIQUES

         1.       Elements Of Legal Fraud

                  All six (6) elements must be present to maintain a prima facie case of fraud.

                  •        False Representation or Concealment
                  •        Knowledge of Falsity and Intent to Deceive
                  •        Material
                  •        Duty
                  •        Reliance
                  •        Resulting Damage or Harm

                                   False Representation Or Concealment

                                            Verbal Statements or Pronouncements (i.e., "I injured
                                             myself at work"; "I am disabled and cannot work")
                                            Written Claims or Allegations
                                            Filing claim application with fabricated accident description
                                            Filing C-84 (Attending Physician Reports)

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                         14
                                   Concealment

                                            Failure to notify employer, Industrial Commission of Ohio
                                             ("Commission"), or physician about ability to work or
                                             "extra-curricular" activities.

                                   Knowledge Of Falsity And Intent To Deceive

                                            Claimant must know that he did not injure himself at work
                                             or that he is not disabled if he is filing a fabricated injury
                                             report.

                                            Claimant must intend to deceive the employer,
                                             Commission, and/or physician with these representations.

                                            Claimant must acknowledge that he knows he is not
                                             entitled to benefits if he is working or is not injured.

                                                    Employment Orientation

                                                    Obtain written acknowledgment with internal
                                                    accident investigation form.

                                                    If possible, obtain an oral acknowledgment from the
                                                    claimant at a recorded workers' compensation
                                                    hearing.

                                   Material

                                            Claimant's false representations must affect his right to
                                             receive benefits.

                                   Duty

                                            Party making false representation must owe a duty to the
                                             party he intends to deceive. See Dayton Walther Corp v.
                                             Kelly (1987), 42 Ohio App. 3d 184.

                                             Implied Duty(Employer/employee relationship).

                                             Express Duty (discussions with employee and signed
                                             acknowledgments).

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                          15
                                   Reliance

                                            Employer must rely on the representations of the claimant
                                             to its detriment. (i.e., certify claim, refrain from appealing
                                             Commission decisions, pay compensation or medical
                                             benefits)

                                   Resulting Damage Or Harm

                                            The employer must have suffered some damage or harm
                                             related to its reliance on claimant's fraudulent claim.
                                                             Self-insured employers:
                                                                            Pay benefits
                                                                     Defense expenses

                                                            State Fund Employers:
                                                            Increased premiums
                                                                   Defense expenses

         2.       Signals Of Fraudulent Claims

                  a.       Injury is phoned in on Monday morning, alleging occurrence the
                           preceding Friday.

                  b.       There are no witnesses to the alleged injury.

                  c.       The injury was never reported.

                  d.       Medical treatment was rendered before the injury allegedly occurred.

                  e.       Injury was reported after lay-off or job termination.

                  f.       Claimant reports for work dressed in street clothing or with a typed,
                           completed claim application.

                  g.       Claimant reports for work with obvious limp or disability, not visible the
                           previous day, and then reports an injury for the same limp or disability.

                  h.       Despite allegations of inability to work, claimant continues with
                           participation in recreational sports.

                  i.       Employee "gossip" suggests that claimant is working or engaged in

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                          16
                           physical activity.

                  j.       "Injury" follows disciplinary action or change in job responsibilities.

E.       OCCUPATIONAL DISEASE CLAIMS

         1.       Scheduled Diseases

                  There are 27 scheduled occupational diseases. By their nature, they are
                  considered inherently occupational. As such, claimant's are not required to show
                  causation, only exposure. The 27 conditions are as follows:

                  a.       Anthrax:
                                   handling of wool, hair, bristles, hides and skins.
                  b.       Glanders:
                                   care of any equine animal suffering from glanders; handling
                                   carcass of such animal.
                  c.       Lead Poisoning
                  d.       Mercury poisoning
                  e.       Phosphorous poisoning
                  f.       Arsenic poisoning
                  g.       Poisoning by benzol or by nitro-derivatives and amido-derivatives of
                           benzol
                  h.       Poisoning by gasoline, benzine, naphtha, or other volatile petroleum
                           product
                  i.       Poisoning by carbon bisulphide
                  j.       Poisoning by wood alcohol
                  k.       Infection or inflammation of the skin on contact surfaces due to oils,
                           cutting compounds or lubricants, dust, liquids, fumes, gases, or vapors
                  l.       Epithelion cancer or ulceration of the skin or the corneal surface of the eye
                           due to carbon, pitch, tar, or tarry compounds
                  m.       Compressed air illness
                  n.       Carbon dioxide poisoning
                  o.       Brass or zinc poisoning
                  p.       Manganese dioxide poisoning
                  q.       Radium poisoning
                  r.       Tenosynovitis and prepatellar bursitis:
                                   characterized by a passive effusion or crepitus into the tendon
                                   sheath of the flexor or extensor muscles of the hand, due to
                                   frequently repetitive motions or vibrations, or prepatellar bursitis
                                   due to continued pressure
                  s.       Chrome ulceration of the skin or nasal passages
                  t.       Potassium cyanide poisoning

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                       17
                  u.       Sulpher dioxide poisoning
                  v.       Berylliosis:
                                    disease of the lungs caused by breathing beryllium in the form of
                                    dust or fumes, producing characteristic changes in the lungs and
                                    demonstrated by x-ray examination, by biopsy or by autopsy.
                  w.       Cardiovascular, pulmonary, or respiratory diseases incurred by fire
                           fighters or police officers following exposure to heat, smoke, toxic gases,
                           chemical fumes and other toxic substances
                  x.       Silicosis
                  y        Coal miners' pneumoconiosis
                  z.       Radiation illness
                  aa.      Asbestosis

         2.       Non-scheduled Diseases

                  Must meet the following criteria:

                           •        must be contracted in the course of employment

                           •        must be peculiar to the claimant's employment by its causes and
                                    the characteristics of its manifestation or conditions of the
                                    employment result in a hazard which distinguishes the
                                    employment in character from employment generally

                           •        the employment must create a risk of contracting the disease in a
                                    greater degree and in a different manner than in the public
                                    generally

         3.       Defending Occupational Disease Claims

                  a.       Determine if there is actual "exposure"

                           •        In cases where multiple employers may be involved, it is the
                                    employer with whom the last injurious exposure occurred that
                                    retains liability for the claim

                           •        Obtain testing

                           •        Obtain medical opinion regarding latency period for development
                                    of the disease

                  b.       Determine if there is a scheduled disease



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                     18
                           •        Is the disease scheduled?

                           •        Obtain an independent medical evaluation to determine if the
                                    claimant indeed has the alleged disease

                           •        If the disease is not scheduled, determine what potential causes
                                    exist for its development (i.e., carpal tunnel syndrome and birth
                                    control pills)

                  c.       "Clean House"

                           Existence of a valid occupational disease claim can be used by co-workers
                           to support their claims of exposure.


F.       OTHER WORKPLACE LIABILITY ISSUES

         1.       Violation of Specific Safety Requirements ("VSSR")

                  Codified under the Ohio Constitution and Ohio Revised Code '4123.74. Provides
                  employees with additional benefits when injuries result directly as the result of an
                  employer's failure to comply with Industrial Commission prescribed safety
                  requirements.

                  a.       Liability & Damages

                           •        Where a valid VSSR application has been filed, the employer is
                                    liability directly to the employee for additional benefits ranging
                                    from 15% to 50% of the compensation available at law

                           •        Liability exists for the life of a claim - not the period it remains in an
                                    employer's experience

                           •        Constitutes prima facie evidence of an intentional tort

                           •        Subjects employer to a potential fine by the Industrial Commission
                                    of up to $25,000

                  b.       Proof Required

                           •        There must be a safety requirement applicable to the employer's
                                    industry and the specific operation in question, and prescribed by
                                    the Industrial Commission of Ohio under the Ohio Administrative

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                            19
                                    Code.

                                            OSHA Standards are not necessarily consistent

                           •        The employer must violate the applicable safety requirement.
                                         No liability where employee circumvents existing safety
                                          mechanisms

                           •        The safety violation must be the direct and proximate cause of the
                                    injury

                           •        Applications, and any amendments, MUST be filed within 2 years of
                                    the date of injury

                           •        Applications must state "with specificity" the specific code section
                                    which was violated

                  c.       Defenses

                           •        Conduct immediate investigation, including pictures and witness
                                    statements of all incidents suggestive of safety violation (i.e.,
                                    amputations, crush injuries)

                           •        Obtain legal counsel

                           •        Obtain ex post facto safety audit and analysis

                           •        Review contemporaneous medical documents to confirm accurate
                                    history

                           •        Utilize good claims management techniques

                           •        Consider settlement

         2.       Intentional Tort

                  a.       Requirements

                           •        Must be filed within one (1) year of the injury or diagnosis of
                                    disease.

                           •        Employer must have knowledge:


8 Crosby, O=Brien & Associates Co., LPA (2000)                                                       20
                                            hazardous, dangerous condition

                                                    prior similar occurrences
                                                    notice
                                            that injury was substantially certainty to occur

                                                   prior similar occurrences

                           $        Employer must:

                                            require employee to perform work despite knowledge of
                                             the risks inherent in proceeding forward

                  b.       Damages

                           Presently unlimited

                  c.       Defenses

                           •        Contact insurance carrier if stop-gap coverage is in place

                           •        Process or apparatus was not dangerous

                                            utilize safety audits

                                            utilize minutes from safety committee meetings

                           •        Injury was not substantially certain to occur

                                            rely on work records and injury records
                                            rely on safety audits and minutes from safety committee
                                             meetings

                           •        Injury resulted from employee conduct

                                            avoidance of installed, effective safety apparatus

                                            horseplay

                                            standard negligence

                                            co-worker (but not supervisor) acts


8 Crosby, O=Brien & Associates Co., LPA (2000)                                                    21
         3.       Subrogation
                  Effective October 20, 1993 Ohio instituted subrogation rights for employers
                  codified under Revised Code ' 4123.93 which states:

                  a.       The right of subrogation applies only if the employee is a party to an
                           action involving the third-party tortfeasor.

                  b.       Consider tort reform and Ohio Revised Code '2317.45 as part of the
                           subrogation issue.


         4.       Wrongful Termination (Ohio Revised Code '4123.90)

                  ... No employer shall discharge, demote, reassign, or take any
                  punitive action against any employee because the employee filed a
                  claim or instituted, pursued or testified in any proceedings under
                  the workers' compensation act for an injury or occupational
                  disease which occurred in the course of and arising out of his
                  employment with that employer. Any such employee may file an
                  action in the common pleas court of the county of such
                  employment in which the relief which may be granted shall be
                  limited to reinstatement with back pay, if the action is based upon
                  discharge, or an award for wages lost if based upon demotion,
                  reassignment, or punitive action taken, offset by earnings
                  subsequent to discharge, demotion, reassignment, or punitive
                  action taken, and payments received pursuant to section 4123.56
                  and Chapter 4141 of the Revised Code plus reasonable attorney
                  fees. The action shall be forever barred unless filed within one
                  hundred eighty days immediately following the discharge,
                  demotion, reassignment, or punitive action taken, and no action
                  may be instituted or maintained unless the employer has received
                  written notice of a claimed violation of the paragraph within the
                  ninety days immediately following the discharge, demotion,
                  reassignment, or punitive action taken.

                  a.       No liability if discharge occurs from enforcement of valid, neutral leave of
                           absence policy.

                  b.       If discharge occurs without just cause, there may be a presumption that it
                           violates this statute.



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      22
Highlights of the Family Medical Leave Act
A.       COVERAGE & ELIGIBILITY

         1.       Employer Requirements

                  •        50 employees

                           at any time within the current or preceding calendar year


         2.       Employee Eligibility

                  •        must have worked 12 months and at least 1,250 hours during the twelve
                           month period before the requested leave

B.       TYPES OF COVERED LEAVE

         1.       Parenting Leave

                  •        Birth, adoption or foster care leave for the employee's child

         2.       Family Medical Leave

                  •        includes Spouse, Child or Parent who suffers from a "serious health
                           condition"

                                   Spouse :     Strictly defined to include only legally recognized
                                                 marriages

                                   Child:       Loosely defined to include relationships extending
                                                 beyond biology or law to include any relationship
                                                 where an adult has assumed day-to-day
                                                 responsibility for care and financial support.

                                                 Includes children over 18 who, because of either a
                                                 mental or physical disability, are unable to fully
                                                 provide for his or her own care.

                  •        Employee need only demonstrate that he or she can provide physical care
                           or "psychological comfort and reassurance which would be beneficial" to

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                   23
                        the family member, regardless of whether full-time professional care is
                        also available or utilized.
         3.       Employee Medical Leave

                  •        For the employee's own serious health condition, if the condition renders
                           the employee unable to perform his or her job function.

                                   Must be a "serious health condition"

                                            the FMLA is not intended to cover short term conditions
                                             for which treatment and recovery are very brief

                                            in-patient treatment automatically qualifies as "serious
                                             health condition"

                                            out-patient treatment qualifies when:

                                             1.     incapacity exceeds 3 days

                                             2.     involves either

                                                    a.     treatment with health care provider3 on at
                                                           least two occasions (pregnancy and chronic
                                                           conditions are exempt from this
                                                           requirement)
                                                                  -or-
                                                    b.     one treatment with health care provider
                                                           with a continuing regimen under medical
                                                           supervision

                                            Any period of incapacity due to pregnancy or prenatal care

                                            Any period of incapacity due to a chronic serious health
                                             condition

              3


  ?Health Care Provider@ includes doctors of medicine or osteopathy, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, Christian science
practitioners, clinical social workers and individuals from whom the employers health plan will accept a
certification to substantiate a claim for benefits.



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      24
                                            Any period of incapacity of a permanent or long-term
                                             nature for which treatment may not be effective

                                            Any period of absence to receive multiple treatments
                                             either for restorative surgery after an accident or injury or
                                             for a condition that would likely result in a period of
                                             incapacity of more than three calendar days in the absence
                                             of medical intervention. NOTE: it must arise from a period
                                             of incapacity of at least three days or receives treatment
                                             two or more times.

                                            Treatment for substance abuse

                                            TYPICALLY (but not necessarily!) exempt from the
                                             definition are:

                                                    common cold
                                                    flu
                                                    ear ache
                                                    stomach upset
                                                    minor ulcers
                                                    non-migraine headaches
                                                    routine dental, orthodontia, periodontia

                                   Must render an employee "unable to perform any of the essential
                                    functions" of the job.

                                            the employer may provide a job description to the
                                             employee's medical provider

C.       AMOUNT OF LEAVE

         In any 12-month period an employee may claim up to 12 weeks of mandated leave for any
         of the permitted reasons.

         1.       Methods of Measurement

                  If the employer fails to select a 12-month measuring period, then the option
                  providing the most beneficial outcome to the employee must be used. The
                  employer may select an option only be providing a 60-day notice to all employees.


8 Crosby, O=Brien & Associates Co., LPA (2000)                                                        25
                  •        Calendar method

                                   Computed from January 1 through December 31

                                        enables "leave stacking" - 24 weeks of leave between
                                         October of one year and March of the following year
                  •        Rolling Calendar method

                                   Measured backward from the date an employee uses any FMLA
                                    leave

                                            avoids "leave stacking"

         2.       Notification

                  Foreseeable leave requires 30 days advance notice by the employee to the
                  employer. The employer may postpone the leave for 30 days, for an employee's
                  failure to properly notify it.

                  •        verbal requests are sufficient

                  •        employers can waive notice requirements

                  •        where the leave is unforeseeable, the employee must notify the employer
                           as soon as is practicable, generally within 1 or 2 business days.

                  •        notice can be given by family members or electronically

         3.       Documentation and Certification

                  Employers can require employees to provide medical documentation for the
                  leave and recertification every thirty days.

                  •        must be on approved form

                  •        employers can require employees to report in on their progress and
                           expected return to work.

         4.       Concurrent Leave and Substitution

                  FMLA leave may be counted concurrently with the employee's receipt of paid
                  time off under a worker's compensation claim, short term disability, or paid leave
                  available under the employer's leave of absence or vacation program, so long as

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                   26
                  it otherwise qualifies as FMLA leave.

                  •        IF NEITHER THE EMPLOYER NOR THE EMPLOYEE DECLARES THAT LEAVE
                           WILL CONCURRENTLY USE UP FMLA LEAVE AND OTHER PAID LEAVE
                           RIGHTS, THE EMPLOYEE MAY RECEIVE THE TOTAL TIME OFF PROVIDED
                           UNDER BOTH PROGRAMS.


         5.       Employer Responsibility For Designating Leave

                  The employer has the duty to designate leave as FMLA leave. If the employer
                  does not designate the leave as FMLA-qualifying, the leave does not count
                  against the employee's 12-week entitlement.

                  •        The employee is not permitted to designate the leave as FMLA after he
                           returns, unless the employer does not learn of the basis for the leave until
                           after the employee returns or the employer understands that the reason
                           for the leave qualifies.

                  •        Upon return-to-work, the employee has only two business days within
                           which to notify the employer that the leave should be designated as
                           FMLA leave.

                  •        Once the employer acquires knowledge that the leave is for an FMLA
                           reason, it generally must designate the leave as FMLA-qualifying, within
                           two business days. The employer must make the designation in writing or
                           confirm it in writing before the next payday.

                  •        The employer may only rely information given by the employee or his or
                           her medical provider, in determining whether leave qualifies under the
                           FMLA.

         6.       Intermittent or Reduced Schedule Leave

                  •        "Intermittent" generally means leave taken in separate blocks of time due
                           to a single illness or injury. May be as short as 1 hour or less.

                  •        "Reduced Schedule" means a leave schedule that reduces an employee's
                           usual number of working hours per week or hours per day.

                  •        only available for Family or Employee medical leave (not available for
                           parenting



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      27
                                   must be a medical basis for the leave, best accommodated by an
                                    intermittent or reduced schedule leave

                  •        Employers cannot require an employee to take more leave than is
                           medically necessary.

D.       PAY AND BENEFITS DURING LEAVE

         1.       Employers must continue or maintain traditional employer payments for group
                  health, insurance plans, as if the employee was still working.

         2.       Employers may require employees on FMLA leave to pay their traditional
                  premium share.

                  •        Must properly notify employees of rights and obligations

                  •        Must provide 30 day and 15 day notices of cancellation

         3.       An employer may cut off health benefits when an employee informs the employer
                  of his or her intent not to return from leave. An employer can recapture benefits
                  from an employee who is able to return from leave but chooses not to return.

         4.       FMLA leave is not a COBRA event.

E.       REINSTATEMENT FOLLOWING LEAVE

         1.       Employee must be returned to the same or equivalent job with equivalent pay
                  and benefits, WITHOUT LOSING ANY ACCRUED BENEFITS.

                  •        FMLA leave cannot effect perfect attendance policies!!

                  •        layoffs exempt

         2.       Lapsed benefits must be reinstated without waiting periods.

         3.       Employer cannot force return to light duty.

         4.       FMLA leave cannot be utilized in evaluating "excessive absenteeism."

         5.       Some exceptions may apply to key employees. However, they must have notice.

F.       ENFORCEMENT AND ADMINISTRATION



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                  28
         The Family Medical Leave Act is enforced by the Wage and Hour division of the
         Department of Labor.

         1.       Employees may bring civil actions for relief and may recover liquidated damages,
                  including:

                  •        wages
                  •        employment benefits
                  •        other compensation denied or lost by reason of the FMLA violation
                  •        actual monetary loss
                  •        interest on these sums
                  •        liquidated damages
                  •        attorney fees

         2.       Required employer documents
                  •     written FMLA policy contained in some type of handbook
                  •     amendments to existing leave, discipline and benefit policies which
                        coordinate the requirements of the FMLA
                  •     posted "FMLA-rights" poster
                  •     employee obligations notice which should be distributed to any employee
                        who actually requests FMLA leave
                  •     written guidance to those requesting leave

         •        Records must be preserved for three years.




8 Crosby, O=Brien & Associates Co., LPA (2000)                                                 29
III. Highlights of the Americans with Disabilities Act (ADA)
A.       GENERAL DEFINITIONS

         1.       DEFINITION OF "DISABILITY"

                  The ADA borrows from the Rehabilitation Act of 1973 and states that disability
                  means:

                           •        a physical or mental impairment that substantially limits one or
                                    more of the major life activities of such individual;

                           •        a record of such impairment; or

                           •        being regarded as having such an impairment.

                  The ADA does not state what physical or mental impairments constitute
                  disabilities.

         2.       EXCLUSIONS

                  •        Homosexuality, bisexuality, transvestism, transsexualism, pedophilia,
                           exhibitionism, voyeurism, gender identity disorders not resulting from
                           physical impairments, and other sexual disorders.

                  •        Compulsive gambling, kleptomania, and pyromania

                  •        The ADA also excludes an individual who is engaged in the use of illegal
                           drugs at the time of an adverse employment action where the employer
                           acts on the basis of such drug use. Persons suffering from psychoactive
                           substance use disorders also are not protected by the ADA. 4

         3.       DEFINITION OF EMPLOYER

                  •        An employer will be anyone having fifteen or more employees

                  •        Employers include any public, private, or quasi public entity other than the

              4

 However, an individual who is engaged in or has completed drug rehabilitation and is no longer
using drugs would be considered protected under the ADA.



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      30
                           United States or a bona fide private club exempt from federal taxation.
                           The term also includes labor unions.

B.       ADA PROTECTION ISSUES

         1.       EEOC TWO STEP DETERMINATION

                  a.       Can the individual satisfy the prerequisite for the position through his or
                           her education, experience, skills or other qualifications.

                  b.       Can the individual perform the essential functions of the job, with or
                           without the employer making a "reasonable accommodation for that
                           disability."

         2.       WHAT ARE "ESSENTIAL FUNCTIONS"?

                  a.       The ADA states that an employer's determination as to what constitutes
                           the "essential functions" of a job will be given consideration. A written job
                           description prepared before the employer advertises or otherwise seeks
                           applicants for a job will also be considered evidence of the essential
                           functions of a job.

                  b.       The elements or test for determining the essential functions are:

                           •        does the employer actually require its employees to perform these
                                    functions;


                           •        does the removal of the function alter the position, i.e., the
                                    position exists solely to perform that function;

                           •        there are only a limited number of employees available to perform
                                    that function;

                           •        the function requires highly specialized personnel;

                           •        the amount of time expended performing the function;

                           •        what are the consequences of non-performance of the function;

                           •        is the function necessary to accomplish the goal; and

                           •        what is the work experience associated with the job or with similar

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                       31
                                    jobs.

         3.       REASONABLE ACCOMMODATION

                  a.       The ADA views reasonable accommodation broadly and provides
                           examples of such accommodations:

                           •        employers must make existing facilities used by employees readily
                                    accessible to and usable by individuals with disabilities;

                           •        employers must consider accommodations in the following areas:

                                            job restructuring;

                                            part-time or modified work schedule;

                                            reassignment to a vacant position;

                                            acquisition or modification of equipment or devices;

                                            appropriate adjustment or modification of examinations;

                                            training materials or policies;

                                            the provision of qualified readers or interpreters; and

                                            other similar accommodations for individuals with
                                             disabilities.

                  b.       The ADA definition of reasonable accommodation is broad and the
                           legislative history to date has taken a similarly broad view of what an
                           employer will be required to do to meet its obligations under the act. As
                           the next section notes, however, the ADA does provide for a defense of
                           "undue hardship."

                  c.       Ohio handicap law - example of reasonable accommodation: Occasional
                           operation of forklift was not an essential function of material handler job
                           because employer could realign job duties.

C.       DEFENSES UNDER THE ADA

         1.       Inability to Accommodate


8 Crosby, O=Brien & Associates Co., LPA (2000)                                                         32
                  •        the employer's action is job-related;

                  •        the employer's action serves a reasonable business need; and

                  •        the employer is unable reasonably to accommodate the applicant or
                           employee.

         2.       HEALTH OR SAFETY REASONS

                  a.       Definition:

                                   the employment of an individual with a disability must not pose a
                                    threat to the health or safety of that individual or other individuals
                                    in the work place; and

                                   the risk cannot be eliminated by a reasonable accommodation.

                  b.       Elements:

                           •        duration of risk;

                           •        nature and severity of potential
                                    harm; and

                           •        likelihood that the harm will occur.

                  c.       Medical Tests:

                           •        Appropriate if they test the substantial, imminent danger of harm
                                    required to reject an applicant.

                           •        The company physician's opinion can be challenged by the treating
                                    doctor.

                           •        The employer cannot act paternalistic.

         3.       ACCOMMODATION POSES AN UNDUE HARDSHIP

                  a.       The term is generally defined as "requiring significant difficulty or
                           expense."

                  b.       What criteria are used for establishing this defense?


8 Crosby, O=Brien & Associates Co., LPA (2000)                                                         33
                           •        the size of the business;

                           •        the size of its budget;

                           •        the nature of its operation;

                           •        the number of its employees;

                           •        the composition and structure of its work force; and

                           •        the nature and cost of the accommodation.

                  c. The legislative history has suggested that a larger or wealthier employer
                     would be required to spend more money or to undertake a greater effort
                     than would a smaller company to accommodate an employee's disability.
D.       AFFECTED AREAS OF EMPLOYMENT

         1.       HIRING AND PRE-EMPLOYMENT PRACTICES

                  a.       Medical Examinations

                           •        The pre-offer use of pre-employment medical examina-tions is
                                    prohibited. Employers are permitted to make pre-offer inquiries as
                                    to the ability of an applicant to perform job-related functions.

                           •        Employers may require physical examination of an applicant after a
                                    contingent job offer has been made, but only if:

                                            all applicants are examined regardless of any disability;

                                            the results of such examinations are collected and
                                             maintained on separate forms and are kept in separate,
                                             confidential files;

                                            examination results are not used for any purpose
                                             prohibited by the ADA;

                                            supervisors, managers, and safety/first aid personnel are
                                             advised of the disability and of any required restrictions or
                                             accommodations that must be made;

                                            an employer demonstrates that the medical examination
                                             was job-related and that there was a business necessity for

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                         34
                                             it; and

                                            an employer also inquires of an applicant whether he or
                                             she is able to perform a job-related function, i.e., can lift
                                             heavy objects, hear soft sounds, operate complex
                                             machinery, etc.

                           •        Contingent offers may be withdrawn if the examination reveals
                                    that the applicant is unable to perform the position sought. This is
                                    also true if the examination reveals that the applicant cannot meet
                                    attendance requirements.

                           •        The ADA prohibits making a pre-employment inquiry concerning
                                    whether an applicant has a disability or the nature or severity of a
                                    disability.


E.       ADDITIONAL PROVISIONS AND CONSIDERATIONS

         1.       ACTS OF DISCRIMINATION

                  a.       Classifying or segregating disabled employees or job applicants in such a
                           way that their employment or promotional opportunities are different
                           than those of able-bodied employees.

                  b.       Permitting someone else to discriminate on your behalf. This means that
                           an employer may not request (or permit) an employment agency,
                           executive recruiter, union, or insurance or other fringe benefits provider
                           to discriminate against your applicants or employees.

                  c.       Job placement tests or standards may not have the purpose or effect of
                           discriminating against an employee or applicant who is disabled.

                  d.       Discriminating against an applicant or employee because that person is
                           related to or has an association with a disabled person. This means that
                           an employer may not refuse to hire someone because his or her spouse or
                           child is disabled or lives with a disabled relative.

                  e.       An employer cannot refuse to make a reasonable accommodation to
                           assist a disabled employee or applicant unless doing so would cause an
                           undue hardship.

                  f.       Similarly, an employer cannot refuse to hire or promote someone because

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                         35
                           he or she will require such an accommodation unless the accommodation
                           would cause an undue hardship.

                  g.       An employer cannot use employment tests or criteria that tend to screen
                           out disabled applicants unless the test is job-related and there is a
                           business necessity for it.

                  h.       An employer must make certain that a test measures job-related abilities
                           and that the test does not simply reflect the applicant's disability, unless
                           that factor is job-related and is the focus of the test.

         2.       INFECTIOUS AND COMMUNICABLE DISEASES

                  a.       The ADA addresses infectious and communicable diseases and food
                           handling employees in the following ways:

                           •        The ADA directs the Secretary of Health and Human Services
                                    ("HHS") to review all infectious and communicable diseases that
                                    may be transmitted through handling of food, publish a list of
                                    such diseases and the methods by which they are transmitted, and
                                    widely disseminate the information.

                           •        Employers may refuse to hire an applicant or may terminate an
                                    employee with a listed disease from a position involving food
                                    handling if there is no reasonable accommodation available to
                                    that employee.

                           •        The ADA also permits the states, counties, or local governments
                                    to enact or adopt laws, ordinances, or regulations applicable to
                                    food handling employees that are intended to protect the public
                                    from the dangers posed by the listed infectious or communicable
                                    diseases.

                  b.       In sum, an employer is not be permitted to act adversely to an employee
                           with an infectious or communicable disease absent recognition by the
                           Secretary of HHS of an actual danger. Under the previous version of the
                           ADA, an employer would have been permitted to remove an employee
                           from a food handling position based on an irrational fear of contagion.

         3.       DRUGS IN THE WORK PLACE

                  a.       The ADA permits an employer to:



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      36
                           •        fire or refuse to hire an individual who "is a current user of illegal
                                    drugs";5

                           •        ban the use of alcohol or illegal drugs in the work place by all
                                    employees;

                           •        require that employees not be under the influence of alcohol or
                                    illegal drugs in the work place;

                           •        require that employees conform to the requirements of the Drug
                                    Free Workplace Act (41 U.S.C. ' 701 et seq.);

                           •        hold alcohol or drug addicted employees to the same standards as
                                    all other employees, even if their unsatisfactory job performance is
                                    caused by their drug addiction or alcoholism; and

                           •        test employees for drug use. (A drug test will not be considered a
                                    medical examination and is thus permitted, pre-employment.)

                  b.       Persons addicted to alcohol are protected under the ADA to the extent
                           that they are otherwise qualified to perform. As noted above, however,
                           their employment may be adversely affected if they violate work rules
                           prohibiting use of alcohol at the workplace.

                  c.       The ADA also states that, where applicable, employers may require that
                           their employees comply with Department of Defense, Nuclear Regulatory
                           Commission, and Department of Transportation drug policy and testing
                           regulations.

                  d.       Protected as "an individual with a disability" is a person who:

                           •        has completed a drug rehabilitation program and is not a current
                                    user of drugs;

                           •        is currently undergoing a drug rehabilitation program but no


           5
               The ADA defines "illegal use of drugs" to mean the use of drugs that is unlawful
under the Controlled Substances Act, 21 U.S.C. '812. Encompassed within the definition is the
use of drugs that may be prescribed by a licensed health care practitioner which is either
inconsistent with the prescription or is without benefit of a prescription.



8 Crosby, O=Brien & Associates Co., LPA (2000)                                                         37
                                    longer is a current user of drugs; or

                           •        is erroneously perceived as a drug user but in fact is not engaging
                                    in drug use.

                  e.       An individual who currently engages in the use of illegal drugs may not be
                           denied health services or services provided in connection with drug
                           rehabilitation on the basis of current use if the individual otherwise is
                           entitled to such services.

                  f.       The ADA defines drug use to include substances listed in schedules I
                           through V of section 202 of the Controlled Substances Act; the term
                           excludes substances taken under the direction of a licensed health
                           professional.

         4.       MEDICAL INFORMATION

                  a.       Medical information obtained through the hiring process must be
                           handled as follows:

                           •        it must be treated as confidential; and

                           •        it must be separately maintained from the employee's personnel
                                    file.

                  b.       This information can be used for the following purposes:

                           •        to inform supervisors of necessary work restrictions;

                           •        to inform first aid and safety personnel when the disability may
                                    require their attention;

                    •    to submit information to various state agencies.
F.       MISCELLANEOUS PROVISIONS

         1.       RETALIATION

                  a.       The ADA prohibits an employer from retaliating against an individual who
                           opposes a practice made unlawful by the ADA or participates in a
                           proceeding brought under the ADA.

                  b.       The ADA also prohibits the interference with or coercion of an individual
                           exercising rights under the act.

8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      38
         2.       POSTING OF NOTICES

                  a.       The ADA requires the posting of notices pursuant to section 711 of the Civil
                           Rights Act of 1964, as amended, 42 U.S.C. ' 2000e-10 ("Title VII").

                  b.       The Equal Employment Opportunity Commission ("EEOC") will be
                           responsible for developing the appropriate poster.

         3.       ENFORCEMENT

                  1.       The ADA adopts the Title VII enforcement and remedial scheme. This
                           includes those remedies provided by the Civil Rights Act of 1990.
                           Therefore, plaintiffs are entitled to jury trials, recovery of compensatory
                           and punitive damages, and recovery of attorneys' fees.




8 Crosby, O=Brien & Associates Co., LPA (2000)                                                      39
Coordinating the FMLA, ADA & Ohio Workers' Compensation



I.

         B.       AMERICANS WITH DISABILITIES ACT 42 U.S.C. §12101 et seq.

                  1.    Employer
                  The ADA applies to employers with 15 or more employees.

                  2.    Employee
                  Any qualified individual with a disability, including job applicants.

                  3.     Disability 29 CFR §1630.2(g)
                  (1) a physical or mental impairment that substantially limits one or
                  more of the major life activities of such individual; (2) a record of
                  such an impairment; or (3) being regarded as having such an
                  impairment.

                  In general, workers' compensation injuries are not protected by
                  the ADA. See McKay v. Toyota Motor Mfg. 1997 Fed.App. 0118P (6th
                  Cir.)(impairment disqualified plaintiff from only a narrow range of
                  jobs and not from working in the broader class of manufacturing
                  jobs.

         C.       FAMILY AND MEDICAL LEAVE ACT of 1993

                  1.      Employer
                  any employer who employs 50 or more employees for each
                  working day during at least 20 weeks in the current year or in the
                  preceding calendar year. Public agencies are covered employers
                  even if they have fewer than 50 employees.

                  2.    Employee
                  an employee must have worked at least 12 months for the
                  employer and for at least 1,250 hours during the preceding 12
                  month period to be eligible for leave.

                  3.       Reasons for Leave
                           parenting - to care for the birth or adoption or


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                           foster care placement

                           family medical leave - to care for the employee's
                           spouse, child or parent who suffers from a "serious
                           health condition"

                           employee medical leave - for the employee's own
                           serious health condition, if the condition renders
                           the employee unable to perform his or her job
                           functions

                  4.       Length of Leaves

                           In any 12-month period, an eligible employee may
                           claim up to 12 weeks of mandated leave and
                           aggregate leave time against the maximum.

                           "Rolling" calendar v. straight calendar

II.      LEAVE OF ABSENCE

         A.       OHIO WORKERS’ COMPENSATION ACT

                  1.       Ohio Revised Code 4123.90

                  ... No employer shall discharge, demote, reassign, or take any punitive action
                  against any employee because the employee filed a claim or instituted, pursued
                  or testified in any proceedings under the workers' compensation act for an injury
                  or occupational disease which occurred in the course of an arising out of his
                  employment with that employer. Any such employee may file an action in the
                  common pleas court of the county of such employment in which the relief which
                  may be granted shall be limited to reinstatement with back pay, if the action is
                  based upon discharge, or an award for wages lost if based upon demotion,
                  reassignment, or punitive action taken, offset by earnings subsequent to
                  discharge, demotion, reassignment, or punitive action taken, and payments
                  received pursuant to section 4123.56 and Chapter 4141. of the Revised Code plus
                  reasonable attorney fees. The action shall be forever barred unless filed within
                  one hundred eighty days immediately following the discharge, demotion,
                  reassignment, or punitive action taken, and no action may be instituted or
                  maintained unless the employer has received written notice of a claimed
                  violation of this paragraph within the ninety days immediately following the
                  discharge, demotion, reassignment, or punitive action taken.



                  2.       Terminations pursuant to written neutral leave of
                           absence policy valid.


8 Crosby, O=Brien & Associates Co., LPA (2000)                                                        41
                        See Metheney v. Sajar Plastics, Inc. (1990) 69 Ohio
                        App.3d 428.
        B.      ADA

                Although the ADA does not specify whether a leave of absence
                may be required as a "reasonable accommodation", if the
                employer has a leave of absence policy applicable to other
                situations (i.e. maternity leave, workers' compensation leave) the
                employer will be required to provide leave of absence to a qualified
                ADA candidate. The EEOC regards leaves of absence as reasonable
                accommodations as stated in Section 3.10 of the Technical
                Assistance Manual:

                        Flexible leave policies should be considered as a reasonable
                        accommodation when people with disabilities require time off
                        from work because of their disability. An employer is not
                        required to provide additional paid leave as an accommodation,
                        but should consider allowing use of accrued leave, advanced
                        leave, or leave without pay, where this will not cause an undue
                        hardship.

        C.      FAMILY AND MEDICAL LEAVE ACT of 1993

                See above.

                Workers' compensation leave can be designated as FMLA leave if
                designated as such by the employer in advance of the leave.

III.    LIGHT DUTY

        A.      Ohio Workers' Compensation Act

                The Ohio Workers' Compensation Act does not require that an
                employer adopt or maintain a light duty return-to-work policy. If
                an employee is released to light duty or restricted work and the
                employer does not have work within the employee's physical
                capabilities, Ohio Revised Code §4123.56 permits the employee to
                receive non-working wage loss compensation for up to 200 weeks.
                 The employee is required to register with the Ohio Bureau of
                Employment Services and regularly pursue work within his or her
                physical capabilities.

                Working wage loss is available where an employee returns to light
                duty or restricted duty work and suffers a loss of wages because
                of the reassignment.

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       B.      ADA

               - "Reasonable Accommodations" include:

               job restructuring; part-time or modified work schedules; reassignment to a
               vacant position; acquisition or modifications of equipment or devices; appropriate
               adjustment or modifications of examinations, training qualified readers or
               interpreters; and other similar accommodations for individuals with disabilities.

               -       employers who make light duty or restricted duty available
               to workers' compensation claimants in order to reduce workers'
               compensation costs will be required to include a light duty option
               as a reasonable accommodation to an ADA candidate.

       C.      FMLA

               "Intermittent leave" and "reduced schedule leave" may be
               included as part of FMLA leave if medically necessary.

               An employer cannot require an employee to take a job with a
               "reasonable accommodation" in lieu of FMLA leave.

IV.    ALCOHOL & SUBSTANCE ABUSE

       A.      Workers' Compensation

               1.       Claims are not compensable when the alcohol or
                        substance abuse caused the injury.

               2.       Employers are permitted to institute mandatory
                        post accident drug testing

       B.      ADA

               1.       pre-employment screening permitted
               2.       active drug and alcohol use not protected under
                        ADA

       C.      FMLA

               1.       no leave for active addiction.




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V.     MEDICAL RECORDS, EXAMINATIONS & REQUIREMENTS

       A.      OHIO WORKERS’ COMPENSATION ACT

               1.       Ohio Revised Code §4123.651
               (A) The employer of a claimant who is injured or disabled in the course of his
               employment may require, without the approval of the administrator or the
               industrial commission, that the claimant be examined by a physician of the
               employer's choice one time upon any issue asserted by the employee or a
               physician of the employee's choice or which is to be considered by the
               commission. Any further requests for medical examinations shall be made to the
               commission which shall consider and rule on the request. The employer shall pay
               the cost of any examinations initiated by the employer.

               (B) The bureau of workers' compensation shall prepare a form for the release of
               medical information, records, and reports relative to the issues necessary for the
               administration of claim under this chapter. The claimant promptly shall provide a
               current signed release of the information, records, and reports when requested
               by the employer. The employer promptly shall provide copies of all medical
               information, records, and reports to the bureau and to the claimant or his
               representative.

               (C) If, without good cause, an employee refuses to submit to any examination
               scheduled under this section or refuses to release or execute a release for any
               medical information, record, or report that is required to be released under this
               section and involves and issue pertinent to the condition alleged in the claim, his
               right to have his claim for compensation or benefits considered, if his claim is
               pending before the administrator, commission or a district or staff hearing
               officer, or to receive any payment for compensation or benefits previously
               granted, is suspended during the period of refusal.

       Use of all relevant medical data concerning the injured workers' past or present
       physical condition are admissible and discoverable for purposes of defending a
       workers' compensation claim.

       B.      ADA

       The ADA permits medical inquiries if they are job related and consistent with
       business necessity.

       Employers are permitted to subject employees to post-offer physical examination
       and to inquire into an employee's ability to perform the essential functions of the
       job.

       Medical records should be kept separately and maintained confidentially.

       C.      FMLA

       Employer is permitted to require a medical certification containing information

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       specific to basis for requested leave.

       Employer is permitted to designate a health care provider to act on its behalf and
       to interact with the employee's provider, with the employee's permission, to
       obtain clarifying information or to authentic the basis for the leave.

       If a workers' compensation leave has also been designated as FMLA leave, the
       medical issues permitted by the workers' compensation act prevail.

F.     RECOMMENDATIONS FOR THE HUMAN RESOURCE PROFESSIONAL

       1.      Development or maintain Employee Handbook which contains policies for:

               a.       Neutral Leave of Absence

                        •       Termination upon expiration of leave period
                        •       Workers' compensation leave runs concurrently with FMLA

               b.       Mandatory drug testing for (1) new hires; (2) post-injury; (3) reasonable
                        suspicion.

               c.       Mandatory reporting of injuries

                        •       Execution of medical release form concurrent with reporting
                                (Appendix B)

               d.       Waivers for participation in company sponsored sports or recreational
                        activities (Appendix C)

               e.       Insure that all policies are neutral and uniformly enforced.

       2.      Light Duty Availability

               a.       Develop procedure for obtaining restrictions from physician of record and
                        notifying employee in writing of light duty offer and consequence for
                        refusal.

       3.      Maintain Proper Filing

               a.       Medical files and workers' compensation files should be separate from
                        employee performance files.

       4.      Avoid Participation in "Annual Inventory of Handicapped Employees" (Appendix

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               D)

       5.      DOCUMENT employee conduct!

       6.      Schedule annual safety audit

               a.       By:

                        •       Independent CERTIFIED safety inspector; or

                        •       Ohio Bureau of Workers' Compensation Safety & Hygiene
                                department

                        •       OSHA

               b.       To protect against:

                        •       VSSR claims

                        •       Occupational disease claims

                        •       Intentional tort liability

                        •       OSHA liability

                        •       General injury claims resulting in lost profits and lost productivity




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