At-will employees who believe that they were retaliated against while receiving workers' compensation benefits are limited to claims under the state's anti-retaliation statute, the Ohio Supreme Court has held in Bickers v. W. & S. Life Ins. Co., Slip Op. No. 2007-Ohio-6751 (2007). This is good news for employers because at-will employees no longer can rely on the Court's controversial decision in Coolidge v. Riverdale Local Sch. Dist., 100 Ohio St. 3d 141 (2003), which allowed for two separate causes of action: a statutory retaliation claim and a wrongful discharge claim based on public policy.

The Bickers decision makes clear that an Ohio employer may terminate an at-will employee for non-retaliatory reasons, including absenteeism or inability to work, even if the employee is receiving workers' compensation benefits. Accordingly, Ohio employers have more flexibility to implement and apply neutral absenteeism policies to all employees. It should be noted that retaliation against an employee who files a workers' compensation claim or otherwise participates in a workers' compensation proceeding is unlawful.

Prior to Bickers, the majority of Ohio appellate courts interpreted Coolidge to prohibit employers from applying neutral attendance policies to employees who were off work and receiving temporary total disability benefits as against public policy. Not surprisingly, employees terminated while receiving workers' compensation benefits routinely filed two claims against their employers:

1. a workers' compensation retaliation claim under the anti-retaliation section of the workers' compensation statute, Ohio Revised Code, Section 4123.90; and
2. a common law wrongful discharge claim based on Coolidge.

This was significant because the procedures and remedies under the two causes of action are quite different. The anti-retaliation section, which prohibits retaliation against employees who have filed a workers' compensation claim or "instituted, pursued or testified" in a workers' compensation hearing, specifies:

• Plaintiffs must give notice of a claimed violation to the employer within 90 days of the termination.
• Plaintiffs have only 180 days from the termination date to file a lawsuit.
• Remedies are limited to reinstatement, back pay and reasonable attorney's fees and cannot recover compensatory, punitive or other non-economic damages.
• Plaintiffs are not entitled to a jury trial.

• has no notice requirement,
• provides a four-year statute of limitations,
• provides for both economic and non-economic damages and
• is triable to a jury.