Injured Firefighter Collects Unemployment During Unpaid Sick Leave

Near the end of December, the Ohio Court of Appeals affirmed the award of unemployment compensation to an injured firefighter who was placed on unpaid sick leave after he exhausted light duty assignments upon reaching maximum medical improvement under the applicable bargaining agreement and after he was denied permanent disability compensation.  Akron v. Dir., Ohio Dept. of Job & Family Servs., 2015-Ohio-5376.  The Court agreed that he was able to work in light duty positions and that he had had been available for work while his union and the employer discussed other possible light duty assignments.   The Court rejected the employer’s argument that the employee had not been available for work because he had not searched for other jobs after being placed on unpaid sick leave.  The employee was not required to produce evidence of his job search activities unless the Director of Job and Family Services requested it and no such request was ever made or required to be made.   Finally, the Court rejected the argument that the employee’s right to unemployment compensation had been waived by the bargaining agreement because the agreement did not made his placement on an indefinite sick leave.

While the unemployment compensation statute precludes contractual waivers of unemployment benefits, the courts have recognized a common law waiver when a union negotiates termination benefits:  

When an employee has a termination package pursuant to a collective-bargaining agreement between [his] union and the employer, the employee is deemed to have accepted the benefits of the package, and waived [his] right to benefits, in return for [his] agreement to be terminated at a certain time. . .  . “The termination when a collective-bargaining agreement exists is deemed to have been for just cause, rendering the employee statutorily ineligible for unemployment compensation.

However, this exception did not apply in this case because the employee was not terminated in accordance with a collectively-bargaining retirement package.   Instead, he was placed indefinitely on unpaid sick leave.  “There is no indication as to how long Mr. Gardner could have remained on this leave status and no indication in the record that this leave status was required by the terms of any agreement between his union and the City.”   Accordingly, the Court refused “ to extend common law waiver to the circumstances present in this case, where there is no termination package at issue, where the leave at issue could last indefinitely, and where the leave at issue was not contemplated as part of any collectively bargained agreement in the record.”

 On a completely different topic, Ohio has a new minimum wage poster for employers and wage for employees to coincide with the new year.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.