In This Issue

• NINTH Annual Labor and Employee Relations Seminar: FEBRUARY 11, 2002
• Age Discrimination —Limitations Period For Filing Claims
• Be Careful About Disclosure of Medical Information
• A New Twist on the Proverbial "Rock and a Hard Place" —Pregnant Employees
• Vacation Policies: An Update
• Employee Grooming Rules —Another Danger
• "100% Healed" Policies May Violate ADA
• Court Finds that Reasonable Accommodation Requirement Does Not Include Allowing an Employee to Work at Home
• Noteworthy Matters

NINTH Annual Labor and Employee Relations Seminar: FEBRUARY 11, 2002

Kegler, Brown, Hill & Ritter will sponsor its ninth annual Labor and Employment Law Seminar on February 11, 2002, in Columbus, Ohio. The seminar, entitled "Selected Issues in Managing Labor and Employee Relations in the Workplace: The Employer's Perspective," will feature presentations on a wide variety of employment related topics and developments.

The speakers will also be available for a question and answer session both during and following the seminar. In addition, detailed written materials on each topic will be provided to each person attending the seminar. A reservation form (PDF) for the ninth annual seminar is included in this Newsletter, or you may contact Ann Krai at Kegler, Brown, Hill & Ritter at (614) 462-5400.

Back to top

Age Discrimination — Limitations Period For Filing Claims

By Larry Feheley

The Sixth Circuit Court of Appeals, trying to anticipate what the Ohio Supreme Court would rule, has dramatically extended the statue of limitations for claims of age discrimination under the Ohio statute from 180 days to 6 years. (The statute of limitations is the period of time after the occurrence of an allegedly discriminatory act in which the employee must file suit. If suit is not filed within the limitations period, the claim is dismissed). By quirk of different legislative enactments, there are currently four sections of the Ohio Revised Code that provide a remedy for age discrimination (Section 4112.02 is a general anti-discrimination statute; Section 4112.05 allows a discrimination charge to be filed with the Civil Rights Commission; Section 4112.14 addresses only age discrimination; and Section 4112.99 permits a private right of action for discrimination). Only one of these statutes, Section 4112.02, specifies a limitations period in which claims must be filed. The period set forth in that section is 180 days.

Because of the kaleidoscope of statutory provisions, the question of the limitations period has been both tortured and complicated. In 1984 the Ohio Supreme Court ruled that, with the exception of claims brought expressly under Section 4112.02, the limitations period applicable to the other age discrimination statutes was 6 years. Morris v. Kaiser Engineers, Inc. (1984), 14 Ohio St. 3d 45. However, in 1994 the Supreme Court ruled, in the case of Bellian v. Bicron Corp. (1994), 69 Ohio St. 3d 517, that any age discrimination claim has to be filed within the 180-day period contained in Section 4112.02. The next year the legislature recodified a number of sections, including some of the age discrimination statutes. Then the legislature enacted the "tort reform" bill, which included a uniform 2-year statute of limitations for discrimination claims. However, the Supreme Court subsequently ruled that the tort legislation was unconstitutional in its entirety, thereby invalidating the 2-year limitations period.

Against this historical morass, the Sixth Circuit had to decide, in the case of Ziegler v. IBP Hog Market, 2001 U.S. App. Lexis 7885 (6th Cir. 2001), what limitations period applied to an age discrimination claim that was filed under Section 4112.14. After analyzing in detail the history of the various sections, the appeals court decided that the rationale that supported the Bellian decision in 1994, which imposed the short 180 days period, was no longer applicable. The Court therefore ruled that the 6-year statute should apply.

This ruling from the federal appellate court will be binding on state-law discrimination claims that are filed in the federal court. The limitations period that will be applied in the state courts is still open to debate, although this ruling from the federal court will no doubt have a persuasive influence.

Back to top

Be Careful About Disclosure of Medical Information

By Larry Feheley

Most employers know that the Americans with Disabilities Act requires that information regarding employees' medical conditions must be maintained in separate files, and must be treated in a confidential manner. [42 U.S.C. §12112d(4)(c)]. A recent decision from the federal district court for the Northern District of Ohio underscores the dangers of even inadvertent disclosure of medical information.

In Pollard v. City of Northwood, 2001 U.S. Dist. Lexis 4277 (N.D. Ohio 2001), a police officer went on medical leave for a psychological reason. A city administrator subsequently made comments about the officer's psychological condition, which were then published in a newspaper article. To make matters worse, the administrator remarked that he felt that the officer was "potentially dangerous," and that he did not feel that an officer who was taking anti-depressant medication should be carrying a gun.

The court ruled that these facts were sufficient to allow the officer's claims for violation of the ADA and for defamation to be submitted to the jury.

Back to top

A New Twist on the Proverbial "Rock and a Hard Place" — Pregnant Employees

By Larry Feheley

The law is well-settled that an employer cannot discriminate against an employee because she is pregnant. This generally means that an employer cannot require a pregnant employee to stop work, as long as she is medically cleared and able to continue working. A recent decision in the State of Washington adds yet another potential for liability. (Although this ruling is not an Ohio decision, the Washington court cited similar rulings in at least three other states, so it is probable that the issue will soon find its way here.)

The new issue, and the new potential for liability, concerns injury to the unborn fetus. In Meyer v. Burger King Corp., 26 P.3d 925 (Wash. 2001), the mother, a pregnant worker in a fast-food restaurant, slipped and fell at work and hit her lower abdomen on a table. The fall caused a "placental abruption," which resulted in a loss of oxygen to the unborn child. The baby was born with severe brain damage. Although the lawsuit was filed on behalf of the child, the restaurant claimed that it should be a workers' compensation claim because the child's injury was "derivative" of the mother's injury.

The court disagreed, stating:

"The fact that the mother and child were injured in the same event does not render the damage to the child derivative of the mother's injury because the child's right of action arises out of the child's own personal injuries and not merely the personal injuries suffered by the mother. . . . [The child's] claim is independent because it is based upon separate and distinct injuries she sustained due to the alleged negligence of [the restaurant]."

What can you do to avoid this danger? Realistically, not much. One good idea, of course, is to try to minimize exposure of pregnant employees to physical hazards that might present a risk to them or the unborn baby. However, in the course of doing so you cannot demote them, or transfer them to a different job (without their consent), or lower their pay, or otherwise adversely affect their employment. Fortunately, the claim that arose in this case was technically one by a non-employee for negligence, which usually means that the employer's general liability insurance would provide coverage.

Back to top

Vacation Policies: An Update

By Larry Feheley

We have advised that a company can structure its vacation policy essentially as it chooses. We have also advised, however, that if the company intends to deny vacation pay when employment is terminated, the written vacation policy must be clear and explicit in that regard. A recent decision from the Franklin County Court of Appeals has confirmed this principle.

When Arthur Gans was hired by Express-Med, Inc., the company agreed to modify its vacation policy in order to allow him to take a vacation during the first year of his employment. When the company later terminated his employment, Gans demanded that he be paid his unused personal and vacation time. However, the company's written policy stated that an employee was not entitled to payment of unused vacation or personal time if employment was terminated prior to the employee's anniversary date of employment. Since the policy was clearly stated, and since it had not been modified, the Appeals Court ruled that the employee was not entitled to payment for the unused time. Gans v. Med-Express, Inc., 2001 Ohio App. Lexis 800 (Fkln. Co. 2001).

Back to top

Employee Grooming Rules — Another Danger

By Larry Feheley

Most employers are aware of sex and race discrimination pitfalls that can arise in the enforcement of grooming or appearance rules for employees. For example, unless there is a compelling business justification, employers cannot require African-American employees who suffer from pseudofolliculitis barbae (a skin disorder that affects predominately African-American males) to adhere to policies forbidding facial hair.

Grooming policies can present another potential pitfall, in the form of discrimination on the basis of religion. Last year, over 2000 charges of religion-based discrimination were filed with the EEOC, costing employers more than $5 million in damage payments.

The law requires employers to accommodate workers' sincerely-held religious beliefs, unless there is a strong performance-based reason that overrides the accommodation. For example, it was reported that earlier this year FedEx was ordered to pay $70,000 after it refused to allow an employee to maintain a religiously-mandated beard. The employee, a Muslim, convinced the court that he had a religious belief that prevented him from removing the beard, and FedEx did not have a legitimate reason, based on either safety or performance, that compelled the no-beard policy.

Back to top

"100% Healed" Policies May Violate ADA

By John Lowe IV

The Federal Court of Appeals that covers Ohio, the U.S. Court of Appeals for the Sixth Circuit, ruled on April 24, 2001 that an employer's policy prohibiting employees from returning to work unless they are "100% healed" is evidence that can be used against the employer to prove a violation of the Americans With Disabilities Act. Henderson v. Ardco, Inc., (6th Cir. 1999) Case No. 99-6407.

Ardco manufactures doors for commercial refrigerators. Plaintiff Dana Henderson was a welder until she suffered a back injury that required a leave of absence for seven months. She sought to return to the company in February 1995 with a doctor's note that included several physical restrictions including that she not be required to stoop or bend, lift more than 25 pounds frequently or more than 40 pounds infrequently. The plant manager for Ardco refused to allow Henderson to return to work informing her that the company had a "100% healed rule."

Henderson filed suit claiming, among other things, that the 100% healed rule prevented her from working despite being able to perform the essential functions of her job with a reasonable accommodation. The trial court granted summary judgment in favor of Ardco, finding that there was no factual issue as to whether Ardco misperceived her condition as being more severe than was actually the case. On appeal, the Sixth Circuit Court of Appeals reversed the lower court's decision, stating that the 100% healed rule could be used as evidence that Henderson was incorrectly perceived as disabled and that this evidence created a factual issue necessitating trial. The Court stated that Henderson's claims should have been allowed to survive summary judgment because evidence of the policy allowed her to show that she was "regarded as being substantially limited in the major life activities of lifting and working."

Back to top

Court Finds that Reasonable Accommodation Requirement Does Not Include Allowing an Employee to Work at Home

By John Lowe IV

The Federal Court of Appeals that covers seven states west of the Mississippi River, the U.S. Court of Appeals for the Eighth Circuit, recently held that an employer did not have to allow an employee with multiple chemical sensitivity and fibromyalsia to work at home since the employer was unable to provide her with the necessary computer technology.

The employee worked as a marketing services coordinator for Toro Company, with duties including processing information on carbonless paper and by computer. The employee developed health problems during her employment which she suspected were connected to the air quality at the office. After taking four months of short term disability leave, the employee requested that she be allowed to return to work. Her doctor stated in a letter than unless the employee was able to avoid such irritants as plastics, carbonless paper, fumes from copiers and co-workers wearing perfumes and colognes it would be "very difficult for her to succeed in gainful employment." After receiving the letter, Toro terminated the employee. The employee filed suit pursuant to the Americans With Disabilities Act claiming that Toro should have accommodated her by letting her work at home.

Toro argued that the proposed accommodation was not feasible and presented evidence that the computer software necessary for her job, a program called Dataflex, could not be used through remote access. In affirming the lower court's grant of summary judgment, the Eighth Circuit stated that the employee had failed to show that use of a computer at home and avoidance of carbonless paper were reasonable accommodations. The Court stated that the company was not required to make an overall change in its manner of conducting business to accommodate the employee. Although it noted that job restructuring is a possible accommodation, the court refused to require Toro to reallocate essential functions of the employee's job, such as working with carbonless paper and working with a specific computer program.

Back to top

Noteworthy Matters

By Dave McCarty

The Ohio Supreme Court recently ruled 5 to 2 in favor of our client, finding that a workers' compensation claimant was not entitled to reverse the Industrial Commission's denial of his application for permanent total disability compensation. In so ruling, the Supreme Court affirmed the decision of the Franklin County Court of Appeals. The claimant unsuccessfully sought to have the vocational expert reports of both the company and the Commission excluded, arguing they were not based upon sufficient medical history and evidence of the claimant's intellectual and vocational aptitude.

Back to top