Changes to House Bill 81 in September 2020

House Bill 81 Changes Announced in Ohio

On June 16, 2020, Governor Mike DeWine signed into effect a new law. The ripple effects of the passage of this law will affect Ohioans seeking to claim Workers’ Compensation. The changes set out by House Bill 81 will go into effect on September 14, 2020.

The bills set out number of changes. Firstly, the bill codifies the voluntary abandonment doctrine. Under the voluntary abandonment doctrine, an employee who abandons employment for reasons unrelated to the work injury is not entitled to temporary total disability compensation or wage loss compensation. Additionally, House Bill 81 states that employers may no longer deny or withdraw consent to a workers’ compensation settlement application if the claim is outside of the period in which the employer’s Bureau of Worker’s Compensation rates are affected by the application, and if the employee is no longer employed by the employer.

Changes to the Standard

The standard for employees filing applications for additional awards due to a safety violation has changed as well. Applications for awards due to safety requirement violations must now be filed within one year after the date of the injury or disability. Previously, that standard was two years. Another specific section of the bill states that employees working in detention facilities, including corrections officers, are now covered by their employers for post-exposure medical diagnostic services. These are services that become necessary as a result of contact with blood or other bodily fluid, drugs or other chemical substance, and/or responding to an inherently dangerous situation while working. The bill also states that if an employee dies as a result of a workplace injury or occupational disease, the employee’s estate is entitled to $7,500.00 in funeral expenses. This is an increase from the previously allowed $5,000.00.

It’s noteworthy that these changes came on amidst the ongoing COVID-19 pandemic and likely are influenced by these events. The new coverage of employees working in detention facilities may be a response to the pandemic. Employers are now required to cover medical diagnostic services for illnesses that result for exposure to bodily fluid. COVID-19 is transmitted through bodily fluid- airborne droplet transmission- and the Ohio incarceration system has been surging with cases.

What Can I Do?

If you have questions, attorneys with Barkan Meizlish, LLP, are available to help with Ohio workers’ compensation and personal injury cases in Columbus and across the state. You can schedule a free consultation online of speak with a lawyer directly by calling (614) 221-4221.

The ADA, COVID-19, and Employee Fears

 ADA Accommodations During COVID-19

For many Americans,returning to work amidst the COVID-19 crisis causes concern for the health and safety of themselves their families. Since the declaration of a global pandemic, America’s most vulnerable citizens have been at the forefront of conversation about preventing the spread. Many “healthy” citizens are not considered at-risk for COVID-19, while those with pre-existing conditions are especially susceptible. Nevertheless, America is re-opening its economy. This leaves individuals with disabilities and pre-existing health conditions in an unwinnable battle. Should they attempt to return to work despite their condition or continue to stay home and risk income? Will the Americans with Disabilities Act (ADA) help them?

Limitations of the ADA

We recommend that if you have health and safety concerns, you express those concerns in writing to your employer. If you have an underlying medical condition or care for someone who does,  contact your doctor to ask about accommodations under the ADA.

The ADA prevents employers from denying employment based on an individual’s status as disabled. The ADA also calls for employers to provide sufficient accommodations for those individuals. New difficulties will continue to rise for disabled individuals during the COVID-19 pandemic and foreseeable future. Employment laws in America are about to undergo an unprecedented wave of new applications, potential violations, and changes. How can employees trust their employer will respect and comply with laws, when the laws themselves are not necessarily equipped to protect them in these uncertain times?

What’s Next?

It is hard to give an affirming answer to employees during uncertain times. However, workers can contact the Occupational Safety and Health Administration to file a complaint if their employer is not adhering to safe practices and may explore the possibility of a workers’ compensation claim if the worker contracts the COVID-19 as a result of returning to work at the employer’s insistence.

What is the Average Ohio Workers’ Comp Settlement for a Back Injury?

Typing “average workers’ compensation settlement for a back injury in Ohio” into Google or another search engine will return a few dollar amounts. However, the numbers are unlikely to be very accurate for an Ohioan who suffered a back injury on the job.

The reality is that many factors go into determining what constitutes a fair and acceptable settlement amount. The Ohio Bureau of Workers’ Compensation and the injured worker will have to ask and answer some questions, including:

  • How much has treatment and therapy for the back injury cost to date?
  • How long will the injury and its symptoms require treatment and therapy?
  • How much will ongoing treatment and therapy cost?
  • How long did the worker spend off the job while recovering?
  • Has the worker been medically cleared to return to their job?
  • Has the worker already resumed working?
  • Are any replacement wages still due?
  • Is any lump sum settlement for an amputation, loss of use, or some other permanent injury due?
  • Is the injury so serious that returning to work seems unlikely and that disability benefits from Social Security or the Ohio Public Employees Retirement System are possible?

A workers’ compensation claim can be settled at any time, even before the claim is allowed. However, an employer cannot force its employee to settle a claim. Nor can an employer retaliate against a worker who reports an on-the-job injury.

The injured worker has an undeniable legal right to seek the advice of an experienced and knowledge employee rights attorney while considering these questions. But the final decision on whether to accept a settlement offer from the workers’ compensation program rests entirely with the individual.

One More Consideration

A related issue will be whether the person who suffered a back injury on the job could have grounds for filing a personal injury claim against a party other than their employer. What lawyers call third-party claims can be filed against those other than co-workers whose negligence causes an injury such as drivers who crash into company vehicles, makers of defective tools, and contractors who failed to comply with electrical and building codes.

A settlement of  the workers’ compensation claim will not affect an injured employee’s right to pursue a third-party claim. However, knowing that a personal injury settlement or jury award is possible could influence an individual’s willingness to conclude their dealings with, and reliance on, workers’ compensation for the payment of medical and therapy bills.

A third-party claim arising from a work-related injury has the same burden of proof as any other personal injury case. To succeed in securing a settlement or winning jury award, the injured person must produce evidence that the defendant’s negligence caused their injury resulting in damages. In the third-party claim, the damages include pain and suffering which are not available in the workers’ compensation claim.

Attorneys with Barkan Meizlish, LLP, are available to help with Ohio workers’ compensation and personal injury cases in Columbus and across the state. You can schedule a free consultation online of speak with a lawyer directly by calling (614) 221-4221.

COVID-19 FAQ

LAYOFFS AND FURLOUGHS DUE TO COVID-19 IN OHIO: WHAT ALL EMPLOYEES NEED TO KNOW.

Employers across Ohio are closing their operations due to Gov. DeWine’s declaration of a state of emergency and the “Shelter in Place” Order.  While the emergency declaration and the “Shelter in Place” Order are necessary to #flattenthecurve, many Ohio businesses are reducing their workforce due to the coronavirus pandemic through layoffs, furloughs, reductions in hours, and pay cuts. The business decisions an employer makes have different impacts on its employees.

If you have been laid off, furloughed or had a reduction in hours, you have important rights.

OHIO UNEMPLOYMENT BENEFITS

The emergency declaration expands unemployment coverage in Ohio until the emergency declaration is lifted.

  • If you are quarantined due to COVID-19 you are eligible for unemployment benefits.
  • The one week waiting period to file for unemployment benefits has been waived so an unemployed worker can file for benefits immediately upon being separated.

The online form to apply is found at: http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/. Applying online will help expedite your application.

If you are working, but have a reduction in hours, you may still be eligible to apply; however, your earnings will be deducted from your maximum benefit amount. This means if what you earn in a week with reduced hours is more than your state maximum benefit, you will not receive unemployment. Maximum Weekly Benefits are:

Number of Dependents If your Average Weekly Wage was: Maximum Weekly Benefit
0 $960 or higher $480
1 or 2 $1,164 or higher $582
3 or more $1,294 or higher $647

 

  • The emergency declaration has waived the requirement that a person receiving unemployment benefits is “actively seeking work.”

THE CORONAVIRUS AID, RELIEF, AND EMERGENCY SECURITY ACT

The federal Coronavirus Aid, Relief, and Emergency Security Act or the “CARES Act” that passed on March 27, 2020 impacts your unemployment benefit entitlement and Maximum Weekly Benefits. Under this federal stimulus law, if you have an unemployment claim in Ohio, you are entitled to an additional weekly $600 Federal Pandemic Unemployment Compensation payment on top of existing state unemployment benefits for a maximum of thirty-nine weeks, subject to further extension rules. Further, sick employees who have the coronavirus can also collect unemployment if they are not receiving paid leave benefits.

The CARES Act mandates extension of unemployment coverage to an individual who is otherwise able to work and:

  1. who is not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
  2. who has exhausted all rights to regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
  3. who is unemployed, partially unemployed, or unable or unavailable to work because the individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
  4. who is caring for a household family member who has been diagnosed with COVID–19;
  5. who is primary caregiver for a child or other person in the household who is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and this prevents work;
  6. who is an employee or new hire that is unable to reach the place of employment because of a COVID-19 quarantine or health provider self-quarantine;
  7. who has become the breadwinner or source of major support for a household because the head of the household has died from COVID–19;
  8. who has to quit his or her job as a direct result of COVID–19 due to closure of the place of employment; or
  9. who is self-employed, is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation.

WAGE AND HOUR CONSIDERATIONS

No pay means no work.

If you have had your normal work hours reduced, your employer cannot require you to do any work outside of those reduced hours without you getting paid for it.  In other words, if an employer asks an employee to do any work during the reduced hours, then the employee must be compensated for that time.   Things like answering emails, taking phone calls, picking up mail, etc. are all work activities for which employees must be compensated.

Wages

An employer cannot reduce an hourly employee’s pay below the Ohio minimum wage which is currently $8.70 per hour.  Employers cannot reduce a salaried employee’s weekly wage below $684 per week.  Both of these are still violations of the Fair Labor Standards Act and the Ohio Wage Act.

Payment

The Ohio Prompt Pay Act remains in effect.  Employers must still pay employees at least on a bi-weekly basis and cannot make an employee wait more than 30-days for their paycheck.

NEW FAMILY MEDICAL LEAVE RIGHTS AND PAID SICK TIME

On March 18, 2020, the federal Families First Coronavirus Response Act (FFRCA) became law.  The law includes two new important provisions for Ohio workers: 1) an emergency expansion to the Family Medical Leave Act (FMLA) and 2) a new Emergency Paid Sick Leave Act that requires paid leave for employees forced to miss work because of the COVID-19 outbreak in certain circumstances:

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

  • Applies to private employers with fewer than 500 employees and to all public employers that are covered by the FMLA regardless of size.
  • An employee is eligible after he or she has been employed for at least 30 calendar days before the first day of the leave.
  • Employees are entitled to 12 weeks of protected leave if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. A public health emergency means an emergency with respect to COVID-19 declared by a federal, state, or local authority.
  • The first 2 weeks of leave are unpaid, but an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
  • After the first 2 weeks, leave is paid at two-thirds of the employee’s usual pay, with a cap of $200 per day. For employees with schedules that vary from week to week, a six-month average is to be used to calculate the number of hours to be paid. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work.
  • The Secretary of Labor is empowered to issue regulations to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

EMERGENCY PAID SICK LEAVE ACT

Requires private employers with fewer than 500 employees and public employers regardless of size to provide up to 80 hours of paid sick leave to employees on top of what the employer now provides (if any). This new paid sick time applies to employees who are unable to work, or telework, because the employee:

  1. Is subject to a federal, state or local quarantine or isolation order.
  2. Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  3. Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. Is caring for an individual who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine as described above.
  5. Is caring for his or her child whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 precautions.
  6. Is experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Important Updates Regarding Workers’ Compensation for First Responders Diagnosed with PTSD:

For some years now in Ohio, lawmakers have been working on a bill that would allow first responders to apply for workers’ compensation if they receive a PTSD diagnosis. The current legislature in Ohio states that in order to receive compensation for PTSD, a physical injury must also be present. This has historically prevented individuals, like first responders, who witness a traumatic event from receiving benefits despite having their lives impact and work inhibited. Several factors have caused push back on the bill for the last nine years. The anticipated increase in workers’ compensation costs by expanding the eligibility criteria has drawn skepticism, as well as fear of a snowball effect following the expanded guideline.

That all being said, this expansion would allow for many workers affected by PTSD to apply for potentially life-saving benefits. The bill passed in the House on February 12th, 2020 and is scheduled for consideration in the Senate.

Does Ohio Workers’ Compensation Cover PTSD?

You cannot file a workers’ compensation claim in Ohio when you request benefits solely because you developed post-traumatic stress disorder. Even if the PTSD can be linked explicitly to something that occurred in the workplace, the mental condition cannot be cited as the only reason you believe you should receive health care coverage and replacement wages for time spent out of work.

We highlighted “cannot,” “solely” and “only” because a claim for workers’ comp benefits can include a request for coverage of PTSD treatments. More on that below. The main thing to understand is that workers’ comp benefits do not get awarded strictly for mental health problems like PTSD, stress, and anxiety.

It is also important to know that severe cases of PTSD and other mental health problems can support a claim for long-term disability benefits through a program like Social Security. The key qualifier there is that the symptoms must keep people off the job for more than a year.

Still, current Ohio workers’ compensation laws limit short-term disability claims to one of the following:

  • Physical injuries incurred while engaged in work-related activities
  • Occupational illnesses related to exposures to substance on the job, or
  • Deaths in workplace accidents.

Mentioning PTSD in a Workers’ Comp Claim

Ohio workers can extend their claim for coverage of an injury or illness by presenting evidence that they developed PTSD as a result of being hurt or sick and unable to do their job. When a qualified psychiatrist, psychologist or other health care provider diagnoses PTSD as developing because a person suffered a work-related injury or illness, treatment and therapy for the mental health condition may be provided along with treatment for the physical condition.

It also worth mentioning that the people who write Ohio’s workers’ comp laws recognize that PTSD is serious and common. In 2019, members of the state House of Representative passed a bill that would have allowed public safety employees like police and firefighters to claim workers’ comp benefits for just PTSD. That proposal did not survive in the state Senate, but it will be brought up again.

Attorneys with Barkan Meizlish, LLP, are available to help with all types of workers’ compensation claims in Ohio. We offer free, no-pressure consultations, and we take appointments online. To speak with a workers’ compensation lawyer directly, call us at (614) 221-4221.

What Does Ohio Workers’ Compensation Insurance Cover?

According to the Ohio Bureau of Workers’ Compensation, “Ohio law requires employers with one or more employees to obtain workers’ compensation coverage or be granted the privilege of self-insurance for liabilities associated with work-related accidents or occupational diseases.”

“Employers” include private companies, schools, healthcare facilities, state and local government agencies, and employment agencies. Individuals who are self-employed can also carry a workers’ comp policy on just themselves. This can make sense for people who do general contracting like carpentry or plumbing, as well as people who spend a lot of time driving to meet clients and customers. The risk for suffering an injury that keeps a self-employed person from working should drive the decision to carry workers’ compensation coverage.

Most employers purchase coverage through the Ohio State Insurance Fund, but some can qualify to be self-insured. A self-insured employer must prove each year that it can provide the same level of coverage for injured or ill employees that the workers’ comp plan offered by the state does.

Employers pay the premiums for Ohio workers’ compensation coverage, and an individual who suffers a work-related injury or who develops an occupational illness can apply for the following benefits:

  • Payment of medical and therapy bills related to the coverable injury or illness
  • Replacement of wages at up to two-thirds of their regular pay for the time spent off the job recovering
  • Lump-sum payments for specified injuries such as an amputation, loss of an eye or permanent hearing loss
  • Financial support for retraining or wage supplements for taking a lower-paying job after becoming able to work again

Coverage is available on a no-fault basis, meaning the injured or ill employee does not need to show that their employer or some other party was negligent in any way. Coverage is also available for any medically documented injury or illness that is work-related. Employers and the Bureau of Workers’ Compensation can challenge whether an injury or illness is work-related. Also, coverage can be denied if evidence exists to show that the condition was self-inflicted or incurred while the employee was intoxicated.

Most people who qualify to receive workers’ compensation benefits in Ohio will have their medical bills paid and their lost wages replaced. Consulting with a knowledgeable and experienced Columbus workers’ comp attorney will make it clear whether applying for additional types of coverage is justified.

A final thing to know about Ohio workers’ compensation coverage is that it can provide compensation and coverage for long and short-term injuries. However, certain long-term disability issues are best covered by another program like Social Security, a pension plan or a private insurance policy. You should contact an Ohio workers’ compensation attorney to discuss which is better for you. Attorneys with Barkan Meizlish, LLP, are available to answer all your questions regarding workers’ compensation insurance in Ohio, You can call our Columbus offices at (614) 221-4221 or schedule a free consultation online.

Can My Employer Fire Me for Filing a Workers’ Comp Claim in Ohio?

In a word, no.

In reality, it happens.

Federal and state laws make it illegal for businesses and their managers to punish employee who file claims for workers’ compensation benefits, Still, injured or ill employees do have reasons to worry about retaliation in the workplace in Ohio. When it occurs, the affected employee has rights under the whistleblower provisions of laws like the Occupational Safety and Health Act to seek a workers’ comp retaliation settlement.

How to Recognize Workplace Retaliation

Companies do not like being named in workers’ comp claims. In addition to driving up insurance costs, reports of workplace accidents require investigations that leave companies open to regulatory penalties and requirements to change the way a business operates. Too often, anger and frustration at such consequences gets illegally redirected toward the employee who suffered and called attention to unsafe working conditions.

Workers’ comp retaliation takes many forms. An employee who returns to work after filing a claim can face

  • Firing;
  • Demotion;
  • Pay and benefits cuts;
  • Reassignment to a dirty, dangerous, or low-status job;
  • Insults and bullying; and/or
  • Physical assaults.

What to Do When Retaliation Occurs

It is not always obvious how to prove that retaliation in the workplace is directly related to seeking workers’ comp benefits. Consulting with a trusted member of the HR team member or a concerned supervisor to clarify what is happening can be a good first step. It is also important to document actions that feel or are identified as retaliatory. At some point, speaking confidentially with an employee’s rights attorney will provide some peace of mind and insight on how to end the retaliation or hold the employer accountable for allowing retaliation.

A workers’ comp retaliation settlement typically includes compensation for back pay, front pay and emotional distress. If a case goes to trial, a jury is also empowered to award punitive damages and to order the defendant to pay the employee’s attorney fees. Punitive damages are noncriminal fines that are intended to penalize wrongdoing and serve as an example to other companies that might mistreat people who apply for workers’ comp benefits.

Several attorneys with Barkan Meizlish, LLP, devote themselves to assisting their fellow Ohioans with securing workers’ comp benefits. These lawyers, who work out of each of our offices in Columbus, Cleveland, and Marietta, offer free consultations throughout the state and take appointments online. Employees with concerns about violations of their rights can also get answers by calling (614) 221-4221.

Review Does Not Mean Reweigh

Recently, in State ex rel. Turner Constr. Co. v. Indus. Comm., 142 Ohio St.3d 310, 2015-Ohio-1202, an employer requested a writ of mandamus that would compel the Industrial Commission to vacate an order of permanent-total disability compensation to a former employee.
In this case, the employee had several previous workers’ compensation claims, but only a claim from 2007 had allowed psychological conditions. In 2011, the employee applied for permanent-total disability compensation based off the psychological condition alone. This request was supported by medical, and approved by the Industrial Condition.
The employer filed a complaint for a writ of mandamus, but this was denied, as the Court of Appeals concluded that there was not an abuse of discretion. The employer appealed, and requested mandamus to determine whether the entire award should be granted under the 2007 claim, or spread amongst other claims. The court denied this mandamus request, because it is not the role of a reviewing court to assess the credibility of the evidence. State ex rel. Pass v. C.S.T. Extraction Co.. 74 Ohio St.3d 373, 376, 658 N.E.2d 1055 (1996).
Thus, so long as the commission’s order is supported by some evidence, there is no abuse of discretion and a court must uphold its decision. Id. Because the commission based its decision to approve the permanent total disability application based off the medical relating to the psychological condition, which was only allowed in the 2007 claim, the Court determined that the employer was not entitled to the extraordinary relief in mandamus.
Source:
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-1202.pdf

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Retaliation and Workers’ Compensation

The Ohio Revised Code states that no employer shall discharge, demote, or take any punitive action against an employee because the employee filed a workers’ compensation claim. R.C. 4123.90. The elements of a retaliatory discharge require an employee to prove that (1) they were injured on the job; (2) the employee filed a claim for workers’ compensation benefits; and (3) that the employee was discharged in contravention of R.C. 4123.90. Once the employee establishes each of these elements, the burden shifts to the employer to articulate a legitimate and nondiscriminatory reason for terminating the employee.

In a recent case, the Court of Appeals of Ohio granted an employer’s Motion for Summary Judgment, because the employee was unable to sufficiently prove that the employer was aware that a workers’ compensation claim had been filed prior to the employee’s termination. In Dragmen v. Swagelok Co., 2014-Ohio-5345 (2014), the employee injured himself while failing to follow the employer’s standard safety procedures. As such, he was placed in a work safety program to stress the importance of following safety procedures, and warned that repeat or additional violations could constitute further discipline, including termination. Id. at ¶8. The employee also filed a workers’ compensation claim, but did not inform his supervisors, and instead filed the claim through the employer’s third party administrator.

Three weeks after being placed in the employee safety program, the employee had a disagreement with a co-worker, which resulted in the employee pulling a chair out from underneath his co-worker. Id. at ¶ 10. The employee was terminated, and he filed a suit alleging that he was fired in retaliation for filing a workers’ compensation claim. The employer filed a Motion for Summary Judgment, which was granted, because there was no evidence that the employee’s supervisors who made the decision to fire him were aware that the employee filed a workers’ compensation claim. Id. at 20.

Thus, “To be liable for retaliating against an employee for taking part in a protected activity, the employer must have knowledge of it.” Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261 at ¶22. Moreover, even though circumstantial evidence can establish knowledge, it is not enough for an employee to simply assert that their employer’s supervisors generally have knowledge of the charges filed by employees. Id. As such, an employee must prove that their employer knew of their workers’ compensation claim, and fired them as a result of it in order to have a valid retaliation claim.

Source: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-5345.pdf
 

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