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: Does an injured worker remain eligible for temporary total when the employer fired him pursuant to a 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.” The employer fired Cobb for violating the drug policy.
The 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  the employer fired the employee because of the employee’s violation of a written work rule or policy that defined the prohibited conduct,  the employer identified the violation as a dischargeable offense and  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 to 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.
The Industrial Commission found that the employer fired Cobb because he violated a written company policy and he knew the employer could fire him for violating the policy. The Commission found this termination made Cobb ineligible to receive temporary total after the date of termination. Court of Appeals denied mandamus.
Decision: Supreme Court affirms.
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. The Court rejects this argument because Cobb knew that termination was an option for a violation of the drug policy. Cobb voluntarily chose to use illegal drugs and the employer would not have fired him (and he would have remained eligible 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 an unwritten company policy on drug use did not bar temporary total. That case is currently pending on appeal to the Supreme Court. [The Supreme Court later 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 later reversed its initial decision in Baker.]