Ohio Revised Code section 4123.90 prohibits employers from
taking any adverse action against an employee who files a claim, or institutes,
pursues, or testifies in any proceeding under the workers' compensation act.
This statute is unique in that is has a two-stage statute of limitations:
Both steps are required, and an employee's failure to
meet either deadline is fatal to a retaliation claim.
In Lawrence v. City of Youngstown (2/25/11), the
Mahoning County Court of Appeals took up the issue of the meaning of
"immediately following" in regards to the 90 and 180 day requirements. The
court recognized an even split among Ohio's appellate courts. Half of the
courts that have considered the issue concluded that the 90 and 180 day
requirements do not begin to run until the employee receives notice of the
termination or other adverse action. The other half concluded that the
effective date of the termination or other adverse action controls.
The Lawrence court sided with the latter,
This language clearly references the date of discharge,
not notice of discharge. If the General Assembly had intended the time periods
to begin to run upon notice of discharge, the statute could have easily been
written to indicate as such. Accordingly, we find that the time limits begin to
run on the effective date of discharge.
Last week, the Ohio Supreme Court agreed to hear this case [pdf] and
resolve the split. Ohio employers should expect clarity on this important issue
in the next 12 - 15 months.
Visit the Ohio Employer's Law Blog for more
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