The Ohio Court of Appeals for the Ninth Appellate District recently issued a decision that has potential to create more questions than answers when it comes to workers’ compensation retaliation and disability discrimination law in Ohio.

While employed at Aldi, Maria Scalia injured her elbow. Her claim for workers’ compensation was granted, and she was off work receiving workers’ compensation benefits while her restrictions impaired her ability to perform her job. A year later, Aldi ordered an independent medical examination which found Ms. Scalia had reached maximum medical improvement, which resulted in the termination of Ms. Scalia’s workers’ compensation benefits. That medical examination also found that she could work without restrictions, even though Ms. Scalia’s personal physician still had some restrictions in place. Shortly after her benefits were terminated, Aldi terminated her employment under its "no fault" attendance policy that required termination of any employee who had performed no work in the past 12 months.

Ms. Scalia claimed retaliation for participation in the workers’ compensation system, wrongful discharge in violation of public policy, and violation of Ohio disability discrimination law because Aldi perceived her as having a disability and fired her for that reason.

What’s the good news for Ohio employers?
The court found that Aldi’s policy of terminating employees who had performed no work in the past 12 months to be "facially neutral" and that Scalia’s termination was not "retaliation per se" for her participation in the Ohio workers’ compensation system.

What’s the bad news?
The court, in remanding Scalia’s case back to the trial court, did not foreclose that Scalia could otherwise support a retaliation claim, saying that their conclusion of no retaliation per se "should not be interpreted to say that an employee can never allege a statutory retaliation claim based on action taken under an attendance policy, or that an employer’s use of a facially neutral attendance policy can never be a pretext for retaliation."

Considering this, employers with these types of "no-fault" attendance policies should be mindful of the risks related to retaliation where all or even some of the days missed under the policy are due to protected types of activity or leave, including workers’ compensation, FMLA, or leave provided as a reasonable accommodation under the ADA—particularly if application of the policy frequently involves consideration of absences covered by these types of statutes. Though courts in Ohio won’t automatically find that application of such policies is retaliatory, employees who can show that protected activity (such as participation in the workers’ compensation system) factored into the employer’s decision are likely to succeed in getting their cases to trial. From the perspective of the workers’ compensation retaliation claim under Ohio law, employers still should be protected so long as they apply the no fault attendance policy evenhandedly and consistently regardless of whether the employee was absent due to a workers’ compensation injury.

As an aside, the Scalia decision also addresses technical distinctions between the definition of "disability" under Ohio discrimination law and the definition under the federal ADAAA. Rather than cause heads to explode dissecting the court’s nuanced opinion on this issue, it is probably better to recognize that the ADAAA definition has become quite expansive and employers therefore will be better served in the vast majority of situations by assuming the employee with a physical or mental impairment has a "disability" and by addressing the reasonable accommodation question first.