Posted: April, 2000
Temporary Total Denied when Injured Worker Fired Pursuant to Employer's Drug Policy
State, ex rel. Cobb v. Indus. Comm. (2/23/00), 88 Ohio St.3d 54.Issue: Is an injured worker ineligible for temporary total when he was fired pursuant to an employer's drug policy which made firing an option for a violation of the policy?
Background: Cobb's claim was allowed and he was receiving temporary total. He tested positive for illegal drug use.
The company had a written drug policy which said violation of the policy "may result in discipline which may include discharge." Cobb was fired for violating the drug policy.
Industrial Commission denied further temporary total following State, ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, which held that termination is voluntary if it is [1] due to an employee's violation of a written work rule or policy that defined the prohibited conduct, [2] was identified by the employer as a dischargeable offense and [3] the employee knew, or should have known, of the policy.
Cobb believed that he would be first suspended if he tested positive and then he would be retested which would determine if he would be fired. The policy does not refer to re-testing. Cobb was aware that he could be fired for violating the policy.
Industrial Commission found that Cobb violated written company policy and was terminated and that he knew he could be terminated for violating the policy. Industrial Commission found this to be a voluntary termination which made Cobb ineligible to receive temporary total after the date of termination. Court of Appeals denied mandamus.
Decision: Supreme Court affirms (7-0).
Court states that the employer's drug policy clearly defined the prohibited conduct. Cobb tried to distinguish his situation from Louisiana-Pacific by arguing that the termination was optional rather than mandatory. Court rejects argument because Cobb knew that termination was an option for violation of the drug policy. Court states Cobb voluntarily chose to use illegal drugs and would not have been fired (and thus ineligible for temporary total) had he not chosen to use drugs.
Editor’s Comment: The Court of Appeals in State, ex rel. McKnabb v. Indus. Comm. determined that a company policy on drug use which was not in writing did not bar temporary total. That case is currently pending on appeal to the Supreme Court. [The Supreme Court has since affirmed the Court of Appeals' decision.]
Has the temporary total termination issue gotten out of hand? The Ohio Supreme Court has granted reconsideration in the Baker case to determine this issue. [The Supreme Court has since issued a decision reversing its initial decision in Baker.]
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