Tarkowsky Employment Law Bulletin: Winter 2017

Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027 (July 21, 2016)

  • The Ohio Supreme Court held that in order to pursue a claim for workers’ compensation retaliation under R.C. 4123.90, the employee need not prove that he/she suffered a work place injury. Even if the workers’ compensation claim is denied, the employer may not retaliate against the employee for filing the claim. Instead, the employee must only prove that he/she was retaliated against in response to filing or pursing workers’ compensation benefits.

Mandatory Post-Accident Drug Screens – OSHA 29 CFR 1904.35 (effective August 10, 2016)

  • OSHA issued a comment to this section indicating that mandatory post-accident drug screen policies are improper as they may deter employees from reporting an injury. The comment further details that drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. Consequently, employers are advised to show probable cause to test their employees after an accidental occurrence.
  • Employers are encouraged to modify Employee Handbooks to prevent a separate OSHA violation should the agency pursue an investigation against an employer.

Ohio’s Medical Marijuana Statute (effective September 8, 2016)

  • The new law permits the use of medical marijuana by way of “oils, tinctures, plant material edibles, and patches” for people who obtain a prescription to aid certain conditions. Notably, smoking marijuana is still illegal.
  • Under the new statute, an employer has no obligation to accommodate an employee’s marijuana usage. As marijuana is still listed as a federally controlled substance, an employee does not qualify as having a disability for his/her marijuana usage under the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA).
  • Additionally, if properly drafted within Company Handbooks, employers still maintain the right to maintain a zero-tolerance drug free work place policy, and may discipline and terminate an employee for marijuana usage, prevent unemployment benefits, and raise the rebuttable presumption within R.C. 4123.54 to deny workers’ compensation claims.
  • It is recommended that employers seek legal assistance to revise Employee Handbooks to ensure policies are compliant with the new statute.

EEOC Practice Changes

  • The EEOC implemented procedures where charging parties can request and receive immediate access to an employer’s position statement. This, in turn, allows employees to provide responses to the EEOC and dispute information provided by employers. Previously, employees could not receive a copy of the employer’s position statement prior to the conclusion of the EEOC’s investigation.

It is recommended that employers obtain legal counsel to draft clear and concise position statements that recount a complete and accurate description of the employer’s justification for the disputed action.