In absentia

Ohio law on long-term absenteeism and no-fault attendance policies has been profoundly changed by an Ohio Supreme Court decision this past October.

In Coolidge v. Riverdale Local School District, 100 Ohio St. 3d 141 (2003), the Ohio Supreme Court broke with substantial and long-standing precedent and ruled that public policy prohibits an employer from discharging employees for absenteeism if they are receiving temporary total disability compensation and are absent because of an allowed industrial injury.

As a result, employers throughout the state should be reviewing their leave and attendance policies.

Employers must also face other issues, including the hiring (and eventual dismissal) of temporary workers to replace those on leave. Yet another concerns is whether the ruling will apply to pre-Coolidge terminations over the last several years. It’s unclear at this point whether the ruling will be appealed, but it is certain to draw legislative attention.

Many Ohio employers have neutral absenteeism policies, which provide that if an employee is absent for a particular length of time (e.g., 12 months), then the employment relationship will be terminated, regardless of the reason for the absence.

Under Coolidge, however, any such policies would have to be modified. The decision holds that discharges of employees receiving temporary total disability compensation for absenteeism caused by allowed workers’ compensation injuries violate public policy.

The plaintiff in Coolidge was a second-grade teacher in the Riverdale Local School District who was assaulted and seriously injured by one of her students on Oct. 22, 1998. She returned to work the next day, but left early to seek medical attention, then called in sick the following work day.

She remained off work and eventually exhausted all of her available options for leave. In September 2000, the Riverdale School board voted to terminate her contract on the grounds that she had “exhausted available paid leave … been absent without leave (and) … failed to perform the duties of her contract.”

Coolidge applied for and was granted temporary total disability (TTD) compensation shortly after her injuries were sustained, and was on TTD at the time of her termination. She appealed the termination decision to the Hancock County Court of Common Pleas, and the case made its way to the Ohio Supreme Court.

Justice Alice Robie Resnick wrote for a unanimous court that the “the overriding issue in this case is whether public policy embodied in the Workers’ Compensation Act protects an employee who is receiving TTD compensation from being discharged solely because of the disabling effects of the allowed injury, that is, absenteeism and inability to work.”

The Coolidge decision raises many questions in its wake.

For example, does the decision prohibit discharge for any absences related to an allowed industrial injury? Also, because wrongful discharge in violation of public policy is a tort claim, does Coolidge give rise to civil claims against employers for both economic (e.g., lost wages) and noneconomic (e.g., emotional and punitive) damages?

This radical departure from existing law was unforeseeable and it is likely that the court will be asked to reconsider this decision. Failing that, it seems probable that the General Assembly will make a prompt attempt at a remedy.

Plainly, there are consequences of this decision that have not been considered and are not discussed in the decision. Richard L. Moore is a partner in the litigation group in the Cincinnati office of Vorys, Sater, Seymour and Pease LLP. Reach him at (513)723.4015 or at