Am I my brother's keeper? - Unemployment News - 4/19/2016

Company found to have just cause to terminate its president when he is absent from work due to a heart attack and other medical concerns, when he did not turn in medical documentation even though he was never requested to do so by his brother, the vice-president.

Kost v. Dir. Ohio Dept. of Job and Family Servs, 2016 Ohio 1364 (11th Dist.).

March 31, 2016

Brothers Theodore and Timothy Kost owned Atwater Nursery, where Theodor was serving as president and Timothy as vice-president.  Theodore's wife also served a secretary and Timothy's wife as treasurer.  In May 2012, Theodore experienced a heart attack and as a result of that and subsequent medical issues, was not able to return to work until the spring of 2013.  During that time Timothy was, of course, aware of Theodore's medical issues, although he never requested documentation.  Atwater continued to pay Theodore through March 2013; however, when he returned to work he found the locks changed and was told he was no longer an employee and would no longer be paid. 

The Unemployment Compensation Review Commission ultimately concluded that Theodore was terminated for just cause.  On appeal to the trial court, it concluded that Theodore's "abandonment of his position constitutes fault that will serve to suspend his connection with work' thus rendering him ineligible for benefits is supported by the record."

When Theodore argued that Atwater did not hold a special meeting to terminate his employment, the Eleventh District reasoned, "Issues of corporate law do not fall within a 'just cause' determination and require adjudication via a separate civil suit."

The Eleventh District then looked at the evidence and reasoned that, Timothy testified he did not receive any documentation about Theodore's inability to work, although is wife testified that the company never requested medical documentation.  "On the other hand, [Theodore and his wife] both testified they informed Atwater Nursery, via Timothy and his wife, that [Theodore] had suffered a heart attack, underwent surgery, had an open wound on his leg, was receiving occupational therapy, and was unable to return to work. [Theodore] testified no one asked him for medical documentation, and he did not think he had to provide any, as that was not the company's practice."

Rather than addressing established case law that explains that a termination is without just cause when it is for attendance that is the result of a bona fide medical reason.  It also did not address case law that establishes that an employee is not required to submit medical documentation unless requested to do so.  Instead, it simply denied Theodore by reasoning, "The testimony of Timothy and his wife does provide competent, credible evidence that [Theodore] did not provide Atwater Nursery with any information regarding his significant health issues or a possible date of return to work."

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