What is a good faith job offer?

The Ohio Supreme Court recently issued an opinion in the case of State ex rel. Ellis Super Valu, Inc. v. Industrial Commission addressing the concept of an offer of suitable employment and what may constitute a “good faith” offer on the part of the employer. The two main things to be derived from this case are: 1) the defenses of voluntary abandonment and refusal of light duty employment are mutually exclusive; and 2) that the Commission should heavily weigh the offer of light duty employment by the employer to determine whether it is a “good faith” offer of employment.

The court in Ellis Super Valu reiterates the three common defenses an employer may have in order to terminate temporary total. Those defenses are: 1) a finding of maximum medical improvement; 2) a release by the physician of record to return to the former position of employment; and 3) the injured worker’s reason for not returning to the workforce is something other than the injury. The last of the three defenses to temporary total concerns the issue of voluntary abandonment. The Court in Ellis Super Valu explains that the defense of voluntary abandonment is completely different from that of a refusal of an offer of light duty employment. As pointed out by the Court, an offer of light duty employment is only made by the employer when the injured worker is unable to return to his or her former position. An employer, under recent case law, cannot raise the defense of voluntary abandonment when an employee is already on temporary total disability. As explained by the Supreme Court of Ohio, an employee cannot abandon a job when he or she temporarily doesn’t even have the physical capacity to be performing that job.

When an employee is temporarily and totally disabled and cannot return to his or her former position of employment, he or she is unable to voluntarily abandon that job; however, this does not foreclose any further defenses for the employer to terminate temporary total disability. Rather, the employer can still raise the defense of refusal of an offer of light duty employment. This is available when the employer makes a written good faith job offer to the injured worker within the restrictions as outlined by the physician of record detailing the type of work to be performed and how it interacts with those established restrictions. The relevant inquiry then for the Industrial Commission is why the injured worker refused the job offer.

The next question that must potentially be addressed is what constitutes a good faith job offer?  The Court scrutinized the job offer of the employer and whether it did constitute good faith. The injured worker in Ellis Super Valu previously was working an eight hour shift five days a week which began at 6:00 a.m. every weekday. The offer of employment, however, was for a shift six days a week from 3:00 p.m. to 9:00 p.m. According to the injured worker, she informed the employer that she was unable to accept this offer of light duty, not because of any physical restrictions, but because she had two teenagers, who would be left alone at night.

Although the Court did not specifically make a ruling as to whether or not the employer’s offer constituted good faith, it was very suggestive that if the employer knew the injured worker could not meet the obligations of the work offer because of other responsibilities, then this would surely not constitute a good faith offer. Thus, the injured worker would still be entitled to temporary total disability.

Going forward, in order to constitute a good faith job offer conforming to the work restrictions as established by the physician of record, the employer must not intentionally or knowingly create an offer of light duty employment for work shifts that the injured worker is unable to accept. This would surely arise in situations such as those of Ellis Super Valu where the employee has a set work schedule and is unable to accept a new offer of employment with dramatically differing work hours because of other responsibilities.

Therefore, in order to constitute good faith, the employer should take the steps necessary to make this offer of other suitable employment within the same work hours as the former position of employment. Should the injured worker raise the argument that the offer was not in good faith, it must be such that the employer consciously created a job offer it knew the injured worker could not accept.

If you would like a full copy of the opinion, or if you have any other questions related to matters of Workers’ Compensation, please feel free to contact one of our statewide Workers’ Compensation practice group members to discuss.