Franklin County Court of Appeals: Ohio Public Policy Exists to Support Wrongful Discharge Claims for Reporting Unsafe Workplace, Substance Abuse and Patient Mistreatment

Last week, a panel of the Franklin County Court of Appeals unanimously reversed an employer’s summary judgment in a wrongful discharge case and found a specific statutory duty for employers to provide a safe workplace that was void of patient malpractice and drug abuse.  Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329.  In that case, a dental office hired a dentist for less than six months in 2002.  In that time, he became the subject of a number of complaints by the plaintiffs (and presumably others).  One of the plaintiffs was terminated shortly after the dentist left and another ceased coming to work approximately five months later, after objecting to unsafe practices (most from the former dentist) involving employees and patients. They both filed a number of claims, including a whistleblower claim which was dismissed on summary judgment, and public policy discharge claims based on an unsafe workplace, mistreatment of patients and workplace substance abuse. The Court reiterated that a plaintiff may pursue a public policy wrongful discharge claim even if her whistleblower claim fails as long as she can identify an independent public policy apart from the failed statutory whistleblower claim.  Further, the plaintiff is not required to specifically identify the statute evincing the public policy in her complaint and can survive summary judgment by identifying the statute at that time.  Rejecting the holding of a different Ohio Court of Appeals, the  Court found Ohio Revised Code §§ 4101.11 and 4101.12 to evince a public policy prohibiting retaliation by employers against employees who report workplace conditions that jeopardize staff and dental patient safety.  Moreover, the Court found these statutes broad enough to also constitute a public policy against alleged workplace drug abuse which poses “threat to employee and patient safety.”

According to the Court’s opinion, the plaintiffs filed a number of claims in April 2008, including whistleblowing, wrongful discharge in violation of public policy and slander.  The employer filed counter-claims against them as well.

[Plaintiffs] alleged . . . that, after [the employer] hired Dr. Allen, they began investigating Dr. Allen's background and discovered he had lost his dentistry license in Michigan, had been convicted of criminal offenses in Michigan, and under the terms of his sentence, was not supposed to leave Michigan. [Plaintiffs] also claimed to have witnessed Dr. Allen engage in substandard and dangerous patient treatment that resulted in permanent damage or loss of teeth. Much of this involved unnecessary dental procedures or deliberately botched work to generate further treatment and thus higher billings for [the employer] and Dr. Allen. [Plaintiffs] further claimed to have witnessed Dr. Allen at work intoxicated, hung over, smelling of alcohol, and falling asleep while examining patients. [Plaintiffs] claimed that they informed their supervisors . . . of these issues regarding Dr. Allen, but rather than act to protect patients from this conduct, ADC management and staff retaliated against appellants by, among other things, harassing appellants, warning them not to lodge further complaints, threatening them with legal action for defamation, reducing their wages, assigning them unfavorable work duties, and denying promotions.

  . . . .

With respect to workplace safety, both [plaintiffs] claim to have reported issues arising from Dr. Allen's conduct, generally alleging that he physically accosted or harassed  [them], threatened them, and had other violent confrontations in the workplace, including an instance in which another dentist in the same office brought a machete to work to confront Dr. Allen. Both [plaintiffs] asserted that, when they brought these problems to the attention of their superiors, they were told to ignore the situation or face termination.

 . . .

 . . . In this case, the record is replete with evidence of the professional shortcomings of Dr. Allen. The evidence indicates he routinely worked when hung over or intoxicated to the point of dysfunction, and the results for some patients were disfiguring, painful, and permanent. He intentionally botched simple procedures in order to generate lucrative repair work after the fact. Most relevant to the jeopardy element, the materials submitted by appellants, if believed, make it clear that their terminations were in direct response to appellants' attempts to warn their employer about the grossly substandard care provided by Dr. Allen to ADC patients.

The trial court granted summary judgment to the employer on most of the plaintiff’s claims in September 2010 (at which time the remaining claims and counter-claims were voluntarily dismissed).   The Court of Appeals initially affirmed the dismissal of most of the claims (including the whistleblower claims), but reversed on the public policy wrongful discharge claim:

we concluded that the trial court erred when it held that as a matter of law appellants had insufficiently pleaded in their complaint the claims for public policy wrongful discharge based on drug and substance abuse in the workplace, patient safety, and workplace safety.

 . . . .

The failure of appellants' whistleblower claims does not preclude a common law claim for wrongful discharge in violation of public policy, because the whistleblower statute supplements rather than replaces the common law cause of action.  . . . However, if an employee fails to strictly comply with the whistleblower requirements of R.C. 4113.52, as we found in Blackburn, the employee cannot base a Greeley claim solely upon the public policy embodied in that statute. Id. at 153. Rather, the employee must identify an independent source of public policy to support her claim.

On remand, the trial again dismissed the wrongful discharge claim on the basis that the sources of public policy were not sufficiently identified in the complaint.  The Court of Appeals reversed since the public policy sources were sufficiently identified at the summary judgment stage:

They cite to two specific sections of the Ohio Revised Code, R.C. 4101.11 and 4101.12, as specific statutory support for their proposed public policy promoting workplace safety for employees and patients. . . .

These sections provide as follows:

R.C. 4101.11. Duty of employer to protect employees and frequenters Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.

R.C. 4101.12.  Duty of employer to furnish safe place of employment No employer shall require, permit, or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide, and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe. No employer shall fail to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees or frequenters. No such employer or other person shall construct, occupy, or maintain any place of employment that is not safe.

 . . .

We accordingly find that these statutes together establish that there exists a clear public policy that is manifested in a state or federal constitution, statute, or administrative regulation in Ohio favoring workplace safety for employees and frequenters.  . . . There is a statewide policy prohibiting termination of employees who report conduct and practices in a dental practice that present a risk of severe harm to patients or staff.

 . . . .

We accordingly find the trial court erred in concluding that there is no Ohio public policy against retaliation by employers against employees who report workplace conditions that jeopardize staff and dental patient safety.  . . .. In so holding, based on R.C. 4101.11 and 4101.12, we specifically disagree with the Sixth District's holding in Whitaker v. FirstEnergy Operating Co., 6th Dist. No. OT-12-021, 2013-Ohio-3856, ¶ 25, which found those statutes too "general and broad" to support such a claim, and agree with the dissent in that case. (Yarbrough, J., dissenting.)

With respect to the allegation that there is a clear statewide public policy against drug abuse in the workplace, other than the general criminalization of some types of drug use, we find that this public policy is essentially subsumed into the two others cited. To the extent the alleged drug abuse is a component of the threat to employee and patient safety, it falls under the workplace safety rubric generally rather than as an independent public policy grounds.

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 change or be 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.

New FMLA Regulations Change Return-To-Work Certifications and Clarify Rules on Delaying FMLA Leave Pending Certifications.

As mentioned in the summaries from the last two weeks, the DOL issued new FMLA regulations in November which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

36. §825.311: Intent to return to work. Although this rule was renumbered, there were no substantive changes from the current regulation at §825.309.

37. §825.312: Fitness for duty Certification. The new rule permits an employer to require a fitness-for-duty certification upon a return to work which certifies that the employee is able to resume work and, if the employer provided a list of the essential job functions to the employee and notified the employee of the requirement in the designation notice, addresses the employee’s ability to perform the essential functions of the job. The employer is also permitted to clarify the certification (as with the prior certification), but may not delay reinstatement during the clarification process. The “simple statement” provision has been deleted, as had the provision requiring an employee to provide a certification at his/her own expense if s/he could not return to work because of a continuation, recurrence or onset of a serious health condition.

Intermittent Absences/Reduced Schedule. In general, employers are not entitled to fitness-for-duty certifications for each such absence or reduced leave schedule. However, when “reasonable safety concerns exist” and the employer so notified the employee in the designation notice, an employer may require such certification no more often than every 30 days. “Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others” based on the nature, magnitude and likelihood of potential harm that could occur.

ADA. As with the current regulations, the employer may not violate the ADA in the certification process. However, the new rule makes clear that “the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA” when the ADA is applicable.

38. §825.313 Failure to provide certification. The new rule clarifies that an employer may deny FMLA leave until the employee provides the required certification or recertification. Because the employee typically has 15 days after request to provide the certification or recertification, the period after the 15 days would be unprotected leave. Job restoration may also be denied if the employee fails to provide a fitness-for-duty certification as directed in the prior designation notice.

There are a few additional changes in other regulations (to conform existing regulations to issues already covered in this blog), but they are unlikely to be applicable on a daily basis in most workplaces, so my work here is done summarizing the new FMLA regulations. Of course, readers could always call me for additional details. In any event, insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

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 change or be 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.