In Ohio, it has been a long-standing principle that an employee injured at work could lose eligibility for temporary total disability compensation in a workers’ compensation claim when the employee is terminated by the employer for violation of a written work rule. The written work rule must define clearly the prohibited conduct, identify the conduct as a dischargeable offense, and was known or should have been known by the employee.
However, a recent court decision by the Franklin County Court of Appeals in State ex rel. Demellweek v. Indus. Comm, is limiting this defense for employers. In its ruling, the court held that employers will not be entitled to use the voluntary abandonment doctrine as a defense when the employer terminates an employee for a minor infraction.
In this case, Lowe’s hired Robert Demellweek in February, 2015. As part of his onboarding, he signed a three-page document titled “Key Responsibilities Guide” and received an employee handbook detailing categories of unacceptable performance and/or prohibited conduct. Lowe’s employee handbook separated offenses into different categories with separate ramifications of the offenses. Violations of safety rules or hazardous materials procedures were defined as an occurrence that would subject an employee to immediate termination. Working in an unsafe manner was defined as an occurrence that would subject an employee to a written warning for a first offense.
Mr. Demellweek injured his right shoulder in the scope of his employment with Lowe’s on Oct. 31, 2015. In April 2016, Lowe’s terminated his employment after he operated an order picker without using a safety harness and tether in violation of Lowe’s written work rules.
After his termination, Mr. Demellweek underwent right shoulder surgery approved in his claim on June 1, 2016 and thereafter his physician indicated he could not return to work. Mr. Demellweek requested temporary total disability compensation, which was contested by his former employer.
The Industrial Commission deemed that Mr. Demellweek had voluntarily abandoned the workforce when he was terminated for violating a written work rule and denied his request for temporary total disability compensation. Mr. Demellweek appealed the Industrial Commission’s decision to the Franklin County Court of Appeals.
The Court of Appeals overturned the Industrial Commission’s decision, finding that Lowe’s should not have terminated Mr. Demellweek for such a minor infraction. The court concluded that Mr. Demellweek did not voluntarily abandon his employment and thus could be entitled to temporary total disability compensation.
Although Mr. Demellweek admitted he operated the order picker without a safety harness and tether, he disputed whether such safety equipment was necessary and whether his actions rose to the level of a dischargeable offense. Mr. Demellweek alleged the picker was only a few inches off the ground and a safety harness would not have protected him from injury. Lowe’s argued the employer has the discretion to determine what conduct rises to the level of a dischargeable offense and that it properly discharged Mr. Demellweek for violation of a written work rule.
The court re-evaluated Lowe’s decision to terminate Mr. Demellweek and concluded that Mr. Demellweek’s actions were not the type of serious violations of safety rules that would normally result in an immediate discharge. The court determined that Mr. Demellweek was not aware that operating a picker a few inches off the ground was conduct that would warrant an immediate termination. Hence, the court rejected Lowe’s position that the termination of Mr. Demellweek amounted to a voluntary abandonment of employment precluding receipt of temporary total disability compensation.
Although the court conceded that the voluntary abandonment of employment doctrine still exists, the court notably stated that it is
“not meant to be a vehicle which allows a self-insured employer to rid itself of injured workers for a minor violation of a work rule, written or not.”
Until the Demellweek decision, courts (as well as the commission) typically had stayed away from questioning the merits of an employer’s termination decision when the employer raised a voluntary abandonment defense, focusing instead on whether the employee understood that the conduct gave rise to a dischargeable offense. Going forward, however, employers should be prepared to present a defense of voluntary abandonment with supporting information such as video evidence, safety records and documents establishing employees committing the same offenses have been discharged. Unless this decision is overturned on appeal by the Supreme Court, it seems that employers seeking to avoid temporary total compensation based on a voluntary abandonment defense are going to have to gear up for what could amount to a full trial on the merits of their decision.