AutoZone exterior shot

Post AutoZone: The New Analysis of Entitlement to TTD under ORC 4123.56(F)

AutoZone exterior shot

Over the last 25 years, since the decision in Louisiana Pacific (1995), Ohio courts have defined and redefined the concept of voluntary abandonment and its effect on the payment of temporary total compensation in a claim, based on specific facts and circumstances where the injured worker may have been terminated for cause or voluntarily left the workforce. However, all of this changed in September 2020 when the Ohio legislature amended ORC 4123.56(F) which eliminated the concept of voluntary abandonment. All prior caselaw which applied the concept of voluntary abandonment was wiped clean.

The legislative change in ORC 4123.56(F) raised many questions for both injured workers’ and employers as to how ORC 4123.56(F) would be applied. In the first major pronouncement on this issue, the 10th District issued a decision which significantly limits an employer’s ability to argue against the payment of temporary total compensation in certain circumstances. State ex rel. AutoZone Stores, Inc. v. Industrial Commission, 2023-Ohio-633 (March 2, 2023). The Court’s decision in AutoZone sets forth a new analysis necessary to determine eligibility for temporary total compensation.

In AutoZone, the injured worker had an allowed shoulder claim and was working light duty. He was terminated after an altercation with a co-worker and thereafter requested a period of TTD following an authorized surgery in the claim. The employer argued that claimant was off work due to his termination, not his impairment from the allowed conditions in the claim, and relied upon caselaw that applied the doctrine of voluntary abandonment which the Court in AutoZone pointed out is no longer in existence. The Court pointed out that the compensation being requested was only paid after the surgery, and it was not requested or paid after the claimant’s termination. The Court indicated that the language change in ORC 4123.56(F) requires the claimant’s inability to work “to stem immediately from an impairment arising from the injury…”, and it is not appropriate to turn the court’s gaze back to the facts and circumstances surrounding why the claimant left the workforce before his surgery. To do so is to resurrect the concept of voluntary abandonment which has been superseded by the legislature.

The employer urged the Court to consider that the claimant’s lost wages were directly related to his termination and, since he was not working at the time of his request, he was ineligible for TTD. In response, the Court indicated that this is not the correct analysis. The Court held that “the legislature did not intend to disqualify any person not working without regard for whether the reason he or she is not working is attributable to the workplace injury.”

Prior to the issuance of this decision, employers could successfully argue against a period of compensation in a claim when the injured worker’s employment ended for reasons unrelated to the claim and based on the claimant’s own actions. If the claimant was no longer in the workforce and their employment had been terminated for violation of a company policy, compensation was not payable, even if the injured worker subsequently obtained approval for surgery in the claim. However, the decision in AutoZone makes it clear that the analysis for entitlement to temporary total compensation is based on the specific facts and circumstances immediately surrounding the request for compensation and there is no “look back” at other reasons why the injured worker was not working. ORC 4123.56(f) states:

If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as a direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section.

Accordingly, AutoZone requires that only the facts and circumstances immediately surrounding the request for compensation are relevant, and prior terminations for reasons unrelated to the claim are considered irrelevant. In the AutoZone case, the results may have been different if the claimant requested compensation immediately following his termination for the altercation with the co-worker and if there was not an approved surgery in the claim. Under those facts, the claimant would have been off work due to reasons unrelated to the claim and based on his own behavior. However, the Court makes it clear that the authorized surgery resulted in lost earnings from the date of the surgery forward, regardless of other prior reasons that the claimant had been out of the workforce.

Clearly, this decision limits an Ohio employer’s ability to argue against the payment of compensation in certain circumstances. It is unclear to what extent this decision applies to termination cases where the facts are distinguishable from the facts in the AutoZone case or in the case of voluntary retirement. The matter has been appealed to the Supreme Court of Ohio which will provide the Court with the opportunity to further clarify RC 4123.56(F).

If you have any further questions, please reach out to one of the Perez Morris workers’ compensation practitioners in Columbus or Cleveland.


 

Rick Hernandez, Perez MorrisRick Hernandez joined Perez Morris in 2017. He is a proactive, strategic and dedicated workers’ compensation defense attorney with more than 30 years’ experience. Rick has represented self-insured and state-funded private employers, state agencies, and public and private universities in proceedings before the Industrial Commission of Ohio and at all levels of court within the state of Ohio. You can reach him at [email protected] or (614) 540-2230. Read more

Email Rick Hernandez

 

 

Beth Weeden, Perez MorrisBeth Weeden joined Perez Morris in 2018. With more than 30 years’ experience, she counsels employers in all aspects of their workers’ compensation and risk management programs. She represents both self-insured and state-funded employers including national and regional retail distribution centers, retail stores, staffing services, restaurants, manufacturing facilities and home health care providers. You can reach Beth at [email protected] or (614) 396-3822. Read more

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HB 447 and the Changing Landscape of Ohio Workers’ Compensation Law for Remote Employees

HB 447 and the Changing Landscape of Ohio Workers’ Compensation Law for Remote Employees

HB 447 and the Changing Landscape of Ohio Workers’ Compensation Law for Remote Employees

Since the beginning of the COVID-19 pandemic, there have been a significant number of employees in America working from their homes instead of in a traditional office setting. As of the end of 2021, an estimated 45% of full-time employees worked in either a partly or fully remote setting. This trend presents new challenges in workers’ compensation and poses the question of whether injuries and disabilities sustained in a remote employee’s home qualify as workplace injuries.

Some Ohio employers have recognized the need to address issues in workers’ compensation with the perspective of their remote employees in mind. The Ohio State University, for example, has implemented new policies regulating the ergonomics of their employees’ workstations at home and setting specific work hours for their employees. Practices like these have been utilized to lessen the risk of work-related injuries that occur in employees’ homes and to prevent frivolous claims for workers’ compensation.

New Ohio legislation further refines the law in this area and protects employers from illegitimate claims for workers’ compensation. HB 447 amends the definition of “injury” within Ohio Revised Code Section 4123.01 to exclude injuries or disabilities sustained by an employee who performs their work duties in their home unless three qualifications are met:

  • the employee’s injury or disability must arise out of the employee’s employment;
  • the injury or disability must be caused by a special hazard of the employee’s employment activity; and
  • the employee’s injury or disability must have been sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

 

This legislation makes it more difficult for remote employees to be awarded workers’ compensation. Prior to the enactment of HB 447, remote workers’ claims for compensation were treated in the same way as those brought by non-remote employees. Workers’ compensation was generally awarded to remote employees if their injuries occurred in the course of and arose out of their employment. Once this law goes into effect, remote employees will need to meet additional requirements. With the added requirements of HB 447, states Representative Brian Lampton, workers are not prevented from making any claims for compensation but are prevented from making frivolous claims.

HB 447 was signed into law by Governor Mike DeWine on June 24, 2022 after passing unanimously in both the Ohio House of Representatives and the Ohio Senate. The law goes into effect on September 23, 2022. Perez & Morris continues to monitor the impact of this law and COVID-19 on workers’ compensation generally.


 

Rick Hernandez, Perez MorrisRick Hernandez is a proactive, strategic and dedicated workers’ compensation defense attorney with more than 30 years’ experience. Rick has represented self-insured and state-funded private employers, state agencies, and public and private universities in proceedings before the Industrial Commission of Ohio and at all levels of court within the state of Ohio. You can reach him at [email protected] or (614) 540-2230. Read more

Email Rick Hernandez

    

Natalie Reidling, Perez MorrisNatalie Reidling is a law clerk at Perez Morris. Natalie is a Juris Doctor candidate at The Ohio State University Moritz College of Law.

Aviation Law Tracker Perez Morris

Nominal defects within cabin & airline’s failure to reseat passenger both may constitute “accidents” under The Montreal Convention

Under the Montreal Convention, an air carrier may be responsible for a passenger’s damages provided there was an “accident,” a term of art that has been widely scrutinized by courts in nearly every federal jurisdiction. The U.S. Supreme Court in Saks v. Air France (1985) set forth a mostly universal interpretation of the term “accident” and defined it as “an unexpected or unusual event or happening that is external to the passenger.” While this definition hardly creates a simple bright-line rule, Saks also added that “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft” does not constitute an accident under the Montreal Convention.

Since Saks, many courts have applied this definition to various factual circumstances. For example, courts have found that an “accident” occurred, or could have occurred, in situations where bottles of liquor fell from the overhead bin (Maxwell v. Aer Lingus), hot coffee was spilled by airline staff (Diaz Lugo v. American Airlines), and beverages were mistakenly served with alcohol causing a passenger’s heart injury (Scala v. American Airlines). Conversely, courts have refused to find an “accident” occurred, or could have occurred, in situations where hearing loss resulted from normal operation of an aircraft’s pressurized cabin (Saks v. Air France), injuries stemming from a passenger’s attempt to pass behind a fully reclined seat (Potter v. Delta Airlines), a heart attack allegedly resulting from an air carrier’s purported refusal to allow him to board a flight for which he was ticketed or to provide accommodations for him during delay, or a passenger’s injuries resulting from his refusal to disembark during forceful removal (Gotz v. Delta Airlines).

In one of the most recent cases to apply the standards set forth in Saks, the United States District Court for the Southern District of New York in Parnass v. British Airways determined that a question of fact remained as to whether an “accident” occurred in a situation where a passenger’s footrest became locked in a halfway upright position, allegedly leading to, or exacerbating, a passenger’s leg injury. Parnass at 1. In denying the airline’s motion for summary judgment, one of the key pieces of evidence was the airline’s admission that the usual, normal, and expected operation of the footrest was not to lock in place in a halfway upright position. Parnass at 3. The court also found that the problem was “well within [the airline’s] control,” and was eventually fixed by the airline when it arrived at its destination. Parnass at 4.

Critically, the court also found that the airline’s failure to move plaintiff to a different seat with a functional footrest could also be considered an “accident” under the Montreal Convention.  Specifically, upon finding out that the footrest for his seat was not functioning correctly, flight attendants did not offer plaintiff any of the multiple unoccupied seats in the Business or Economy cabins. Rather, plaintiff was only offered an unreclinable Economy Class seat at the rear of the plane where plaintiff could not sit because the passenger seat in front was fully reclined, causing limited space that would allegedly aggravate plaintiff’s leg condition. Additionally, the airline did not provide any reason why any or all of the other unoccupied seats on the flight were unavailable.

According to the court, these circumstances collectively raised a question of fact regarding whether the airline’s refusal to reseat plaintiff in one of the unoccupied seats was an “unexpected” or “unusual” event. Parnass at 4.

The decision in Parnass may suggest a pathway for similar claims revolving around seemingly minor or nominal defects inside an airplane’s cabin that could serve as the basis for suit against an airline, especially if there are alternative unoccupied seats that do not contain such a defect. For example, conditions like a non-functional window shade, low-hanging tray table, or even a misaligned arm rest could all potentially be viewed as sufficiently “unexpected” or “unusual” so as to constitute an “accident” under Saks and its progeny. In fact, Parnass cited to Monaghan v. Aeroflot Russian Airlines as an analogous case where an “accident” was found when an insufficiently trimmed ziptie under a seat sliced into the tendon of an unsuspecting passenger who was placing his bag under the seat in front of him.

Furthermore, Parnass illustrates that a passenger’s preexisting condition may contribute as to whether a court finds that an “accident” could have occurred. Although the court did not specifically rely on it to reach its holding, plaintiff had a notable history of knee and ligament issues that made placing his foot on or under a footrest painful and restricted his ability to sit in the unreclinable seat at the back of the plane. While preexisting injuries are not part of the legal standard, a plaintiff’s unique physical limitations could influence a court’s decision as some alternatives may or may not be suitable for a particular passenger.

 


Charity Hyde, Perez Morris

Charity Hyde is the Managing Attorney, Northeast Offices of Perez Morris Hyde. Her core practice includes aviation-related litigation, transportation and motor vehicle liability, premises liability, and insurance fraud investigation. Charity’s background includes leading multi-attorney teams and representing airlines, airports, commercial entities, retailers, and large manufacturing clients in complex, high-exposure litigation in several states. You may contact her at [email protected] or 215-692-1235. Read more

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Michael Aceto, Perez & Morris attorney headshot

Michael W. Aceto is an experienced commercial lawyer who practices in Pennsylvania and New Jersey. He focuses his practice on aviation, commercial contracts and disputes, product liability, and toxic tort, as well as other areas of general liability. He counsels clients in transactional matters regarding commercial issues, as well as industrial accidents involving technical equipment, motor vehicles, construction machinery, household consumer products, as well as aviation-related issues.

Before entering private practice, Michael served as a law clerk in the Torts Litigation Section of the Pennsylvania Office of Attorney General and as a judicial law clerk to the Hon. Edward Griffith in the Chester County, PA Court of Common Pleas. In addition, he focuses his pro bono practice on counseling non-profit organizations in the educational system. You may contact him at [email protected] or (215) 692-1242. Read more

Email Michael Aceto

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Skies still cloudy: Federal preemption under Montreal Convention continues on turbulent track

The question of whether, and to what extent, federal law preempts state law for aviation claims falling under the purview of the Montreal Convention (“the Convention”) has remained a challenging and unsettled issue across jurisdictions for decades. With no official pronouncement from the Supreme Court of the United States, courts have been left to interpret what has amounted to unclear language of the Convention with minimal binding precedent, resulting in markedly inconsistent applications. While the purpose of the Convention was to reconcile supplemental amendments to the prior iteration of the treaty and achieve uniformity of the rules governing international carriage, one of the most critical issues—federal preemption—ironically continues on a path of relative uncertainty.

In the most recent judicial opinion to address this issue, Parrish v. City of Albuquerque became the first court in the Tenth Circuit to find that the Convention cannot be read to completely preempt state law claims. In Parrish, the passenger had booked a flight from Albuquerque, New Mexico to Canada. Although able to walk with limited mobility, the passenger was provided wheelchair assistance at check-in. After being escorted to the gate in the wheelchair, the passenger was then left unassisted during the boarding process, instructed by airline personnel to board without help, and was injured while attempting to push the wheelchair down the jet-bridge herself. Parrish at 2.

While specifying that case law is divided on whether complete federal preemption applies, the court looked to the plain meaning of Article 29 and its statutory construction to conclude that it permits alternative causes of action under state law outside the scope of the Montreal Convention. Specifically, the court found that the phrase “whether under this Convention or in contract or in tort or otherwise” meant that state law claims could be allowed because the conjunction “or” was used as a function word to indicate an alternative avenue of recovery for claimants. Parrish at 6. On the other hand, the court mentioned that if the Convention was read to require complete preemption, the words “or in contract or in tort or otherwise” would be rendered worthless as no alternative would be available. Parrish at 7.

In further disagreeing with the argument in favor of complete federal preemption, the court found that the reliance on the seminal U.S. Supreme Court decision of El Al Israel Airlines v. Tsui Yuan Tseng to be unpersuasive. The Parrish court did not view the conclusion of Tseng (“recovery for a personal injury suffered on board [an] aircraft or in the course of any of the operations of embarking or disembarking, if not allowed under the Convention, is not available at all”) as having a preemptive effect. Instead, Parrish reasoned that a conflict of law between authorities does not itself automatically result in total preemption and therefore any reliance on Tseng would improperly conflate the two legal doctrines. Parrish at 5.

Notably, the holding in Parrish is at odds with other district courts within the Tenth Circuit, including Callahan v. United Airlines (2017), where the court held that the Montreal Convention completely preempts state law and provides passengers an exclusive remedy. Callahan at 3. Importantly, the court examined the exact same language from the treaty as did Parrish, yet the Callahan court found that the Convention exclusively established itself as the only cause of action for claims within its scope because Article 29 “mandate[es] that any action, no matter the basis, can only be brought subject to the provisions of the Convention.” Callahan at 3. In also citing to Tseng—but to support its conclusion—the Callahan court pointed out that “recourse to local law would undermine the uniform regulation of international air carrier liability that the Convention was designed to foster.” Callahan at 2 citing Tseng.

Although there are stark differences of interpretation as to the scope of the Convention’s preemptive reach, courts do agree that there is no binding authority within the Tenth Circuit, and that there is division among courts in other jurisdictions as well. Given these continued inconsistencies, the issue of federal preemption under the Montreal Convention remains ripe for appellate review.

 


 

Charity Hyde, Perez Morris

Charity Hyde is the Managing Attorney, Northeast Offices of Perez Morris Hyde. Her core practice includes aviation-related litigation, transportation and motor vehicle liability, premises liability, and insurance fraud investigation. Charity’s background includes leading multi-attorney teams and representing airlines, airports, commercial entities, retailers, and large manufacturing clients in complex, high-exposure litigation in several states. You may contact her at [email protected] or 215-692-1235. Read more

Email Charity Hyde

 

 

Michael Aceto, Perez & Morris attorney headshot

Michael W. Aceto concentrates his practice in the areas of product liability, toxic tort, environmental, and general liability claims. He is a trial lawyer with experience defending companies and individuals in matters involving mass torts including asbestos, benzene, talc, mold, lead, and other chemicals, and dedicates a significant portion of his practice to complex product liability actions involving industrial equipment, commercial and consumer motor vehicles, construction machinery, and household consumer products.

Before entering private practice, Michael served as a law clerk in the Torts Litigation Section of the Pennsylvania Office of Attorney General and as a judicial law clerk to the Hon. Edward Griffith in the Chester County, PA Court of Common Pleas. In addition, he focuses his pro bono practice on counseling non-profit organizations in the educational system. Read more

Email Michael Aceto

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How claims of Non-Performance of a Contract seek to circumvent Montreal Convention Preemption

Liability governing the international shipment of goods between signatory countries proceeds through Articles 18 and 19 of the Montreal Convention. International air carriers subject to the Montreal Convention are strictly liable for damages caused by the delay in transporting goods, or due to physical damage otherwise sustained during international transport. Consequently, the Montreal Convention is typically the exclusive remedy for claims of delay or physical damage related to the international air transport of cargo. However, a recent Federal District Court’s decision in New Fortune, Inc. v. Apex Logistics International (CN) Ltd., et al. illustrates that while the Montreal Convention is the exclusive remedy in such instances, breach of contract claims alleging non-performance due to the delay or physical damage to goods could circumvent the Montreal Convention as the exclusive remedy to aggrieved parties. International carriers should be cognizant that damages to goods due to delay or physical damage may not always have the protections of the Special Drawing Rights afforded by the Montreal Convention.

New Fortune, Inc. v. Apex Logistics International (CN) Ltd., et al., is an international air cargo case decided in the United States District Court, Southern District of New York. The plaintiff alleged that six crates of medical masks were damaged and that its buyer refused to accept their late delivery, costing the plaintiff more than $1.65 million in damages, which included manufacturing and shipping costs, as well as lost profits from an additional two million masks it had purchased and planned to sell to the same customer. Plaintiff’s complaint alleged breach of contract, breach of bailment, and negligence against both carrier defendants based on the delayed delivery and physical damage the masks sustained during transit. The defendant carriers moved to dismiss plaintiff’s breach of contract, breach of bailment, and negligence causes of actions citing that Articles 18 and 19 of the Montreal Convention preempt those claims. Plaintiff countered arguing the physical damage to the masks and the delay in their delivery resulted in defendants’ non-performance of the contract between the parties. Plaintiff’s contention was that non-performance of a contract is not governed by the Montreal Convention.

The Court granted defendants’ motion to dismiss finding plaintiff’s claims fall within the scope of the Montreal Convention. However, the Court noted that dismissal of plaintiff’s claims was warranted because plaintiff’s complaint did not allege non-performance of the contract. Instead, the complaint explicitly claimed damages occasioned by delay in delivery and physical damage to delivered goods. The Court did not expound further on whether plaintiff’s breach of contract claim would have survived had it been predicated on non-performance. However, the implication exists that the Montreal Convention may not preempt breach of contract claims based on non-performance of a contract for the shipment of goods.

The decision in New Fortune, Inc. echoes a trend in recent Montreal Convention decisions limiting its preemptive scope. In light of the United States Supreme Court’s ongoing silence regarding whether the Montreal Convention completely preempts state law claims related to international travel between signatory countries, international carriers remain vulnerable to potential exposure beyond the cap in damages afforded by the Montreal Convention.

 


 

Charity Hyde, Perez Morris

Charity Hyde is the Managing Attorney, Northeast Offices of Perez Morris Hyde. Her core practice includes aviation-related litigation, transportation and motor vehicle liability, premises liability, and insurance fraud investigation. Charity’s background includes leading multi-attorney teams and representing airlines, airports, commercial entities, retailers, and large manufacturing clients in complex, high-exposure litigation in several states. You may contact her at [email protected] or 215-692-1235. Read more

Email Charity Hyde

 

 

Michael Aceto, Perez & Morris attorney headshot

Michael W. Aceto concentrates his practice in the areas of product liability, toxic tort, environmental, and general liability claims. He is a trial lawyer with experience defending companies and individuals in matters involving mass torts including asbestos, benzene, talc, mold, lead, and other chemicals, and dedicates a significant portion of his practice to complex product liability actions involving industrial equipment, commercial and consumer motor vehicles, construction machinery, and household consumer products.

Before entering private practice, Michael served as a law clerk in the Torts Litigation Section of the Pennsylvania Office of Attorney General and as a judicial law clerk to the Hon. Edward Griffith in the Chester County, PA Court of Common Pleas. In addition, he focuses his pro bono practice on counseling non-profit organizations in the educational system. Read more

Email Michael Aceto

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Perez Morris Rallies Partners to Raise $12,000 for Local Elementary School in Need

Perez Morris, KEMBA Financial, Right Way Medical, and Buckeye Elm Contracting raised over $12k to help Etna Road Elementary make up for lost funding

Today, Perez Morris shared that they led the charge in raising over $12,000 for a local elementary school, Etna Road Elementary, to provide clothing, meals, holiday gifts, emergency family relief, and ongoing support for programming at the school. The donation would not have been possible without the support of their partners at KEMBA Financial Credit Union, Right Way Medical, and Buckeye Elm Contracting.

After the firm’s managing attorney, Sarah Perez and founding partner, John Perez learned that the school lost funding ahead of the holidays that would strip away holiday gifts and resources for families, Perez Morris adopted the school to help offset lost funding by rallying valued partners together to collaborate in compiling a direct donation.

The donation allowed Etna Road Elementary to provide clothing and fulfill Christmas wish lists for 29 kids and their families, with more than 200 items total received at year-end. Now, the remainder of the donation will be used to support the school throughout 2021.

Initially, the school only needed $6,000 to make up for lost funding, but when the initiative was finalized the businesses banded together to raise double that amount. The surplus dollars will be contributed to the Etna Road Principal’s Fund, which will be used for emergency relief to families, support for programs at the school, and for the food pantry they have onsite.

“Our Columbus community has helped to build and support Perez Morris for decades, and we feel a responsibility to give back to those who need it. We also feel so very privileged to have partners that are aligned with that,” explains Sarah Perez, firm managing attorney at Perez Morris. “When we learned Etna Road lost their funding, we were honored to have the opportunity to rally funds to invest in our community’s youth. By doing so, we’re building opportunities that will help build a stronger foundation for the Columbus of tomorrow.”

While COVID-19 has caused hardships for many families across our city, it’s been especially difficult for the students at Etna Road, as nearly all the students and their families identify as economically disadvantaged, with 20% being English language learners.

“It was KEMBA’s pleasure to partner with Etna Elementary School and support their work, it fully complements our mission of enriching the financial lives of the communities we serve,” said Mark Decello, President & CEO of KEMBA Financial Credit Union. “KEMBA has had a presence in Whitehall since the late 70s, and we’re proud to support its residents.”

Right Way Medical shares the sentiment. “Right Way Medical is proud to be a small part of the Etna Road Elementary project spearheaded by Perez & Morris,” explains Josh Prati, President and CEO of Right Way Medical. “With the holidays being a stressful time for many, plus the added difficulties of 2020, it was natural for our team to lend a hand and continue to support our community. We hope this gift helps connect families to resources for ongoing support throughout the year and creates a ripple effect of giving for 2021.”

Medical professional with a COVID-19 vaccine

Can Employers Force Employees to Take the COVID-19 Vaccine?

With the recent FDA approval of several COVID-19 vaccines, questions have arisen about whether employers can require their workforce to take the COVID-19 vaccine and if so, whether it is a smart business decision to do so.

The short answer is yes, but with significant exceptions. Notably, the EEOC issued updated guidelines on December 16, 2020 confirming that employers can require employees to have the vaccine as a condition of continuing to work. However, exceptions to this include employees who have an underlying health condition or disability that precludes them from taking the vaccine, or those who have a sincerely held religious belief, practice or observance that would prevent them from taking the vaccine.

The specific laws that are triggered by an employer required vaccination policy include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964. These are the specific federal laws that protect employees and enable employees to argue that they should be precluded from participating in a mandatory vaccine requirement.

If an employee requests an accommodation under one of the federal laws, the employer has an obligation to determine if a reasonable accommodation is possible, without causing undue hardship to the employer. For example, it may be possible to allow the person to work from home or to work in a sequestered area of the business location. If it is not possible to make an accommodation and it is determined that unvaccinated individuals pose a potential threat to the safety of the workplace, an employer does have a right to exclude the person from physically entering the workplace. That does not mean that an employer should terminate the individual’s employment as they may be eligible for other forms of leave or protection under federal, state, or local laws.

In speaking with several Ohio employers about this issue, it seems that most employers are choosing to institute a voluntary vaccination program. Some employees have health insurance that covers vaccinations, and some do not. To encourage those without health insurance to get the vaccination, some employers have creatively thought of ways to incentivize the obtaining of a vaccination by providing a few hours of time off or gift cards to employees who voluntarily get the vaccination.

It will likely be several months before a vaccine is available to a majority of Ohioans. This delay gives employers time to think about whether they want to have a mandatory vaccine requirement or whether they simply want to encourage employees to get the vaccination voluntarily. It is important to remember that information regarding mandatory vaccinations and the EEOC’s position on this is fluid and will be changed and updated on an ongoing basis as medical information becomes available regarding the vaccinations, and it is therefore important to continue to check for updated information.

 


 

Beth Weeden, Perez & Morris attorney headshot

Beth has represented and advised employers for thirty years regarding all aspects of their workers’ compensation and risk management programs. Beth’s philosophy is that preparation and attention to detail are the hallmarks of a successful defense plan. Her practice includes representation of employers at all administrative hearing levels before the Industrial Commission of Ohio and the adjudicating bodies of the Ohio Bureau of Workers’ Compensation.

Beth received her JD from Capital University Law School in 1988. She resides in Bexley, Ohio with her husband and two children. Read more

Private jet during sunrise

Walking The Tightrope: Waiver of Airline Defenses Under Montreal Convention Can Prove Costly, Despite Recoveries in “Bump” Cases

Involuntary denial of boarding a flight, also known as getting “bumped,” has been a common practice by airlines for years. It occurs in situations where there are more passengers scheduled to fly on an airplane than available seats. When a flight is full and overbooked, airlines use their own criteria to chose which passenger(s) will be removed or “bumped” from the flight.

In a recent case of “bumping,” in Lockhart v. Coastal Air Transport, the Supreme Court of the Virgin Islands affirmed the award of damages to a passenger who was wrongfully denied boarding an international flight from Dominica to St. Croix, initially due to an erroneous ticketing issue that was determined to be the fault of the airline. Lockhart at 1. On appeal, the primary question the Court addressed was the issue of whether a passenger who was involuntarily denied boarding (“bumped”) is entitled to compensation when the plane has a capacity of only nine seats. Importantly, although this case was within the purview of the Montreal Convention (“Convention”), as it involved international carriage, the Court noted that the airline had waived its right to assert defenses under the Convention because the airline did not raise those defenses in its responsive pleadings.[1] Lockhart at fn. 2. Instead, the airline relied upon Section 250 of the Code of Federal Regulations as authority to support its position that the passenger was not entitled to recovery for compensatory damages, such as the cost of the ticket and subsequent expenses including overnight accommodations.

Specifically, the airline argued that the passenger’s recovery was precluded under 14 C.F.R. §250.6, which permits an airline to deny a passenger from boarding an oversold flight in the event the aircraft has 60 or less seats and is unable to accommodate additional passengers due to weight/balance restrictions related to operation and safety. Lockhart at 2. In affirming the trial court’s award for the passenger, the Court endorsed the position that private legal action is permissible if airlines refuse recompense or passengers do not agree to an airline’s proposed compensation in “bumping” situations. Id. at 3. The Court determined that §250.6 was inapplicable because the airline presented no evidence that the passenger was denied boarding due to weight or balance restrictions. The Court also found that §250 did not apply in the first place because it is limited to a category of aircrafts that have a designed passenger capacity of 30 or more passenger seats, and the aircraft at issue was limited to only nine seats. Lockhart at 2. As a result, this case was governed by local law rather than the Code of Federal Regulations. Id. at 3.

As seen in Lockhart, multiple controlling authorities have the potential to govern these types of claims, including the Code of Federal Regulations, the Montreal Convention, local law, and potentially other sources. While individual facts and circumstances in each case will ultimately determine whether liability exists and the extent of available damages, the Montreal Convention can serve to provide levels of limitation on recovery and may provide grounds for complete dismissal in certain situations. Although the passenger’s recovery in Lockhart was ultimately upheld, the airline was fortunate that the scope of this particular claim was limited to nominal compensatory damages. In many situations, waiving defenses provided under the Montreal Convention is a risky proposition as the Convention provides a number of limitations on recovery and safeguards for air carriers, including caps on delay damages per Article 19, preclusion of recovery for delays under Article 17, in addition to the prohibition of emotional and punitive damages. Carriers flying internationally rely on these limitations on recovery, and risk losing these protections when waiving the defense of the Montreal Convention.

[1] It is unknown whether waiving defenses under the Montreal Convention was done intentionally or not.

 


 

Michael Aceto, Perez & Morris attorney headshot

Michael W. Aceto concentrates his practice in the areas of product liability, toxic tort, environmental, and general liability claims. He is a trial lawyer with experience defending companies and individuals in matters involving mass torts including asbestos, benzene, talc, mold, lead, and other chemicals, and dedicates a significant portion of his practice to complex product liability actions involving industrial equipment, commercial and consumer motor vehicles, construction machinery, and household consumer products.

Before entering private practice, Michael served as a law clerk in the Torts Litigation Section of the Pennsylvania Office of Attorney General and as a judicial law clerk to the Hon. Edward Griffith in the Chester County, PA Court of Common Pleas. In addition, he focuses his pro bono practice on counseling non-profit organizations in the educational system. Read more

Email Michael Aceto

 

Gray Oxford, Perez-Morris headshot

Gray has extensive New York civil litigation experience defending high exposure cases involving alleged premises, construction, elevator, New York State Labor Law, environmental and toxic torts, asbestos, landscaping, auto, and municipality claims. Prior to joining Perez Morris Hyde, Gray spent over 5 years with his prior firm as lead counsel for cases at the Trial and Appellate levels, including a published and favorable decision by the First Department, Appellate Division of New York. Dillon K. v. N. Blvd. 4818, LLC, 161 A.D.3d 664, 77 N.Y.S.3d 69 (N.Y. App. Div. 2018).

Gray is excited to be a part of the growing and collaborative, NAMWOLF certified team at Perez Morris. Read more

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Updates to Ohio Employment Discrimination Laws

On January 12, 2021, Governor Mike DeWine signed into law HB 352, the Employment Law Uniformity Act. This new legislation will have a significant impact on employers including: a shortened statute of limitations for workplace discrimination actions; requirement to exhaust administrative remedies with the Ohio Civil Rights Commission (OCRC); limitation on individual liability; and clarification of age discrimination claims. The law will go into effect on April 12, 2021.

 

Statute of Limitations

Under the Employment Law Uniformity Act, the statute of limitations for all workplace discrimination actions has been changed from six years to two years. The previous six year period was the longest in the United States. In conjunction with the revision to the civil statute of limitations, the window for filing an administrative charge OCRC has been extended from 180 days to 2 years.

 

Requirement to Exhaust Administrative Remedies

Employees making workplace discrimination claims are now required to file with the OCRC before filing a claim in a county court of common pleas. Previously, an employee could file only in court or could simultaneously file with the OCRC and in court.

 

Individual Liability

Pursuant to the new law, supervisors and managers cannot be held individually liable so long as he or she is acting in the interest of the employer. Prior to this law, higher level employees could be named as individual defendants and could be held individually liable for decisions pertaining to employee disciplinary action or termination.

 

Age Discrimination

The Employment Law Uniformity Act clarifies the state’s multiple age discrimination statutes by aligning age claims with claims for all other types of discrimination. As such, age claims will be subject to the 2-year statute of limitations and administrative exhaustion.

As a general matter, the Employment Law Uniformity Act puts Ohio’s laws more in line with their federal counterparts such as Title VII, the ADEA and the ADA. Please contact us with any questions regarding the new law or any other employment matters.

 


 

Kevin Murch, Perez & Morris headshotAnne Marie defends clients in all general litigation claims from inception to resolution, including claims of property damage, personal injury, wrongful death, and breach of contract. She has experience working in all levels of the judicial system in numerous states.

Anne Marie lives in Clintonville with her husband, Mark, and two daughters, Quincy and Eliza. Read more

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Charity Hyde American Bar Foundation Fellows

Perez Morris’s Charity Hyde Invited to be a Fellow of the American Bar Foundation

The honor afforded to just 1% of licensed lawyers in jurisdiction will allow Hyde to aid in propelling the legal sector towards equality and justice

Charity Hyde, Perez MorrisPhiladelphia, Pa. (January 14, 2020) – Today, Perez Morris announces that Charity Hyde, Managing Attorney of the firm’s Northeast offices, has been invited to join the Fellows of the American Bar Foundation. Although nationally known as Perez Morris, the firm operates as Perez Morris Hyde LLC throughout the Northeast.

Charity has been with the firm for two years and oversees the firm’s litigation in the Northeast region of the U.S. She has built a presence for Columbus, Ohio-based Perez Morris in Pennsylvania and New Jersey, along with her team in Connecticut, New York and Massachusetts, rooted in diversity, philanthropy and justice. Her core practice includes aviation-related litigation, premises liability, commercial transportation and motor vehicle liability, premises liability, and insurance fraud investigation. She also spent more than two decades litigating complex toxic tort claims.

To be invited to become a fellow, attorneys must be nominated by a group of peers as a result of progressive work in the legal field. Fellows contribute to the American Bar Foundation’s research at the intersection of law and the social sciences, aiding in research, programming, writing, and policy recommendations have helped move the legal profession and society as a whole toward greater equality and justice.

“I am extremely humbled to be selected as a Fellow by this incredible organization that has performed such important research to address diversity and equal justice, education and critical questions at the intersection of law and society,” said Charity Hyde. “Throughout my career, I have strived to lead by example and give back, and this opportunity allows me to focus on areas of the law and society itself that are incredibly important to me while servicing the needs of my clients.”

Only 1% of licensed lawyers in this jurisdiction are afforded the honor of being admitted. Perez Morris is proud to have a member of the team working to move the legal sector forward towards greater equality and justice, especially during a time where work in propelling racial justice is so critical.

“We are so proud of Charity and her exemplary leadership in the legal profession, as well as within our firm. I can say, after having worked alongside her, the honor is well-deserved,” said Sarah Perez, Firm Managing Partner. “We are always striving to reach new heights in our practice and in serving clients, and Charity exemplifies our firm’s values in this regard.”

 


 

About Perez Morris

Perez Morris is a women-owned business law firm headquartered in Columbus, Ohio with offices in Pennsylvania, New York, New Jersey, Connecticut and Massachusetts, and attorneys licensed to practice across the country. In the Northeast, the firm operates as Perez Morris Hyde. We guide our business clients to manage their risk and make deals happen. We provide general counsel, business litigation, and commercial transactional services nationwide with a focus on cost-effective, practical, industry-savvy advice that allows our clients to continue to grow and thrive.