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)
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
• No limit to benefits
• Payment structure based as follows:
first 12 weeks payable at 72% of the "full weekly wage" 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
8 Crosby, O=Brien & Associates Co., LPA (2000) 2
remaining weeks payable at 66-2/3% of the average weekly
• 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
• 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
• 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
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.
Automatically granted upon request where an injured
worker has suffered an amputational loss of two or more
body parts (not including individual fingers)
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:
other medical issues (i.e., heart disease)
work experience & qualifications
• 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
• 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
employee must register with the Ohio Bureau of
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
• There is no waiting period for pursuing wage loss compensation.
• Wage Loss Compensation is only available for 200 weeks, per
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
• 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
• 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
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
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
• there was no work-related incident
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
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
• 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
• 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:
Canvass area hospitals in region where employee lives or
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
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
• Updated drivers' abstract from the Ohio Bureau of Motor Vehicles
• Supplemental medical records from the physician of record in the
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
• Contact employers with whom the injured worker claims to have
• Pursue updated medical records from the physician supporting
• 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
• 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
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.
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
• Settlement proceeds are not considered part of
compensation paid regarding self insured
b. Information To Evaluate
• Determine Personal Data
Prior work history
Identify allowed conditions.
Identify other conditions at issue.
Identify potential future conditions.
8 Crosby, O=Brien & Associates Co., LPA (2000) 12
Calculate benefits received (medical and compensation
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.
Appeal all allowance issues or other '4123.512 issues into
Develop plan to terminate existing benefits.
Develop claim issues that will support writ of mandamus
Develop claim issues that are appealable into the court of
Consider extraordinary options like pursuing fraud
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
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
• 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
• 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
• 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
Failure to notify employer, Industrial Commission of Ohio
("Commission"), or physician about ability to work or
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
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.
Obtain written acknowledgment with internal
accident investigation form.
If possible, obtain an oral acknowledgment from the
claimant at a recorded workers' compensation
Claimant's false representations must affect his right to
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
8 Crosby, O=Brien & Associates Co., LPA (2000) 15
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
Resulting Damage Or Harm
The employer must have suffered some damage or harm
related to its reliance on claimant's fraudulent claim.
State Fund Employers:
2. Signals Of Fraudulent Claims
a. Injury is phoned in on Monday morning, alleging occurrence the
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
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:
handling of wool, hair, bristles, hides and skins.
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
h. Poisoning by gasoline, benzine, naphtha, or other volatile petroleum
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
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
y Coal miners' pneumoconiosis
z. Radiation illness
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
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
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
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
• 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
OSHA Standards are not necessarily consistent
• The employer must violate the applicable safety requirement.
No liability where employee circumvents existing safety
• The safety violation must be the direct and proximate cause of the
• 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
• 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
• Utilize good claims management techniques
• Consider settlement
2. Intentional Tort
• Must be filed within one (1) year of the injury or diagnosis of
• Employer must have knowledge:
8 Crosby, O=Brien & Associates Co., LPA (2000) 20
hazardous, dangerous condition
prior similar occurrences
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
• 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
• Injury resulted from employee conduct
avoidance of installed, effective safety apparatus
co-worker (but not supervisor) acts
8 Crosby, O=Brien & Associates Co., LPA (2000) 21
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
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
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
Spouse : Strictly defined to include only legally recognized
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
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
b. one treatment with health care provider
with a continuing regimen under medical
Any period of incapacity due to pregnancy or prenatal care
Any period of incapacity due to a chronic serious health
?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
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
avoids "leave stacking"
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
• 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
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
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
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
• 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,
• 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
• 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
• 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
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
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
• 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
• 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
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:
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
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
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
2. HEALTH OR SAFETY REASONS
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.
• duration of risk;
• nature and severity of potential
• 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
• The employer cannot act paternalistic.
3. ACCOMMODATION POSES AN UNDUE HARDSHIP
a. The term is generally defined as "requiring significant difficulty or
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,
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
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
• 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
• The ADA prohibits making a pre-employment inquiry concerning
whether an applicant has a disability or the nature or severity of a
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
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
• 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
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
• ban the use of alcohol or illegal drugs in the work place by all
• 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
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
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
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
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
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.
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
B. AMERICANS WITH DISABILITIES ACT 42 U.S.C. §12101 et seq.
The ADA applies to employers with 15 or more employees.
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
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
C. FAMILY AND MEDICAL LEAVE ACT of 1993
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.
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
8 Crosby, O=Brien & Associates Co., LPA (2000) 40
foster care placement
family medical leave - to care for the employee's
spouse, child or parent who suffers from a "serious
employee medical leave - for the employee's own
serious health condition, if the condition renders
the employee unable to perform his or her job
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
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
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
C. FAMILY AND MEDICAL LEAVE ACT of 1993
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
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.
Crosby, O=Brien & Associates Co., LPA Page 42 ADA, FMLA & Workers= Compensation
- "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.
"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
1. pre-employment screening permitted
2. active drug and alcohol use not protected under
1. no leave for active addiction.
Crosby, O=Brien & Associates Co., LPA Page 43 ADA, FMLA & Workers= Compensation
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
(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.
The ADA permits medical inquiries if they are job related and consistent with
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
Medical records should be kept separately and maintained confidentially.
Employer is permitted to require a medical certification containing information
Crosby, O=Brien & Associates Co., LPA Page 44 ADA, FMLA & Workers= Compensation
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
c. Mandatory reporting of injuries
• Execution of medical release form concurrent with reporting
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
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
Crosby, O=Brien & Associates Co., LPA Page 45 ADA, FMLA & Workers= Compensation
5. DOCUMENT employee conduct!
6. Schedule annual safety audit
• Independent CERTIFIED safety inspector; or
• Ohio Bureau of Workers' Compensation Safety & Hygiene
b. To protect against:
• VSSR claims
• Occupational disease claims
• Intentional tort liability
• OSHA liability
• General injury claims resulting in lost profits and lost productivity
Crosby, O=Brien & Associates Co., LPA Page 46 ADA, FMLA & Workers= Compensation