Under Ohio Revised Code §4123.90, a former employee must provide written notice of a potential workers’ compensation retaliation claim against his former employer within 90 days of the discharge. However, a recent decision by the Ohio Supreme Court, Lawrence v. Youngstown [pdf], provides a narrow exception to this rule and allows former employees to provide the required, written notice within 90 days of learning of the discharge when the employee was not aware of the discharge and could not have learned of the discharge within a reasonable period of time.
In Lawrence, the employee was discharged while he was on an indefinite suspension. Although the employer contended that it mailed notice of the discharge to the employee, the employee contended that he did not receive notice of his discharge until 41 days after the employer mailed the notice. Unfortunately, the employer did not have proof that the notice of termination was delivered to the employee to combat the employee’s allegations. Consequently, the Court expanded the 90 day written notice requirement to permit the employee to provide the statutory required notice of his potential workers’ compensation retaliation claim within 90 days of the date on which he became aware of the discharge.
This Court created exception applies when the employer cannot refute an employee’s allegation that the employee was not aware or did not receive notice of the discharge at the time alleged by the employer. Employers can reduce the potential likelihood that the exception applies by obtaining an employee’s signature on discharge paperwork or by sending the discharge paperwork to the employee requiring signature upon delivery or at minimum, delivery confirmation.