Under the defense of voluntary abandonment, an employer can block a claimant’s eligibility for future temporary total disability benefits if the employer can show that the claimant was terminated for violating a written work rule or policy. The job abandonment is deemed to be voluntary if three main tests for the use of this defense are met:
- The work rule must clearly define the prohibited conduct;
- The prohibited conduct must have been previously identified by the employer as a dischargeable offense;
The employee must have known or should have known of the rule.
In some situations, criminal conduct would appear to be an obvious and justifiable reason for termination and is well known to all employees. However, in the sometimes unusual and bizarre world of workers’ compensation, criminal conviction may not be enough to block temporary total disability benefits. State ex rel. Gray v. Indus. Comm. (Ohio App. 10 Dist. 2013), 2013-Ohio-670.
In Gray, the claimant worked at a car dealership and was required to operate and deliver cars to other dealers. It was discovered that he was convicted of DUI (driving under the influence) and because of his conviction, he was terminated by his employer because he was no longer insurable as a driver. The claimant later sought temporary total disability benefits when he underwent surgery and further treatment for an earlier workplace injury. The Industrial Commission denied the benefits finding that the claimant had voluntarily abandoned his job when he was terminated after the discovery of his DUI. The employee handbook for the dealership specifically read:
Employees expected to drive dealership vehicles must provide the dealership with current and acceptable motor vehicle driving information. Employment and/or assignment will be conditional pending the receipt of a satisfactory report in the State of Ohio Department of Motor Vehicles.
Unfortunately for the employer, there was no provision in the handbook that indicated that receipt of a DUI by an employee could be grounds for termination. More importantly, there was no indication in the handbook, or in any other written policy provided to the employees, that their insurability was a condition for continued employment.
The claimant in Gray filed a mandamus action challenging the Industrial Commission’s denial of temporary total disability benefits. In granting the request for mandamus relief and vacating the prior order denying claimant any benefits, the Tenth District Court of Appeals ruled that the provision in the handbook requiring updated motor vehicle driver information did not sufficiently inform the employees who drove for the dealership that they could be terminated for any loss of insurability or for a conviction of a motor vehicle offense.
While a DUI would appear to be an obvious offense that would impact an employee’s job if they are required to operate a motor vehicle, the Tenth District Court of Appeals continues to take a very hard line in their application of the voluntary abandonment defense in workers’ compensation cases. There must be proof that there was a written rule violated by the employee and that the written rule was known to the employee prior to their commission of the wrongful act. The Gray decision serves as a warning to employers that while they may have reasonable grounds to terminate an employee, they may not be able to block workers’ compensation benefits unless the written work rules or other written policies contain specific provisions addressing the conduct at issue.