Another facet of the ongoing fallout of the COVID-19 pandemic is the litigation that has ensued, particularly in employment law. Last month, there was progress in two cases stemming from the pandemic. The first involves the non-teaching employee employment statute, RC 3319.081, which requires that all non-teaching employees be “paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity.” Prior to the pandemic, this generally only came up during snow days and other school closures. The second case is at the university level but involves one of the first causes of action under RC 3792.04, a statute enacted in 2021 which prohibits public schools and state institutions of higher education from discriminating against persons based on their vaccination status.
State ex rel. Ohio Assn. of Pub. School Emps. v. Willoughby-Eastlake City School Dist., 2022-Ohio-4242
The Eleventh District Court of Appeals has overturned an injunction that prohibited a reduction in force during the pandemic.
During the 2020-2021 school year, a School Board transitioned to remote instruction due to the pandemic. Buildings remained open for teachers, administrators, secretaries, and certain special education students. On November 19, 2020, the Board voted to implement a reduction in force of certain non-teaching employees.
The trial court granted a preliminary injunction in favor of the Union. In its order, the trial court determined the following with regard to the statutory language: COVID-19 is “an epidemic or other public calamity”; the laid-off employees are “employed,” despite the reduction in force; and even though students are being taught remotely, the schools are “closed” because the employees cannot report to the buildings to perform their duties. The trial court also concluded that it had jurisdiction to hear the matter because the rights asserted under R.C. 3319.081(G) are independent from the parties’ collective bargaining agreement.
Unfortunately, the Eleventh District Court of Appeals did not answer the questions of whether a reduction in force ends an employee’s eligibility to be paid wages for all time lost from a school closure, and whether a school building providing only remote instruction but which is still open to teachers, administrators, secretaries and special education students, is “closed.” The Appellate Court avoided those questions because the case was reversed on jurisdictional grounds. The Court found that the employees’ rights regarding reduction in force were governed by the collective bargaining agreement. The collective bargaining agreement has a grievance process that is ultimately resolved through binding arbitration rather than litigation. The Court recognized that even though an employee may have rights provided by a statute (e.g. 3319.081 and 3319.17), if the application of the statute is dependent on an interpretation of a collective bargaining agreement, a court lacks jurisdiction over the case and it must be resolved through the grievance and arbitration process.
Siliko v. Miami Univ., 2022-Ohio-4133.
In this case, the Plaintiffs were employees that sued Miami University for claims alleging that the University’s vaccination policy violated the Ohio Constitution (“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety”), as well as RC 2905.12 (Coercion); 3709.212 (a 2021 statute limiting the applicability of certain health department regulations related to disease prevention); 3792.04(B)(1) (requiring a vaccine); and 3792.04(B)(2) (discrimination on the basis of vaccination status).
Miami’s vaccination policy provided that all employees and students must be fully vaccinated by November 22, 2021, unless exempted. Requests for exemption were required to be submitted by October 15, 2021. Faculty, staff and students were also required to receive at least their first COVID-19 vaccine dose by October 25, 2021. The policy further provided that “exemptions may be granted for medical reasons, sincerely held religious beliefs or reasons of conscience (philosophical or ethical reason) and a deferral granted for pregnancy or nursing.” Individuals with an approved exemption were required to comply with COVID-19 testing and other educational and preventative health and safety measures. As for employees, the policy provided that “employees who choose not to be vaccinated and who do not receive an approved exemption will face disciplinary action.”
The trial court dismissed the Plaintiffs’ complaint after finding that they lacked standing to challenge Miami University’s vaccination policy because, at the time of filing the complaint, they either had obtained an exemption to the vaccine requirement or had failed to request an exemption. The Appellate Court agreed with the dismissal except as to the discrimination claims under RC 3792.04(B)(2). The Plaintiffs alleged that because the policy required exempted employees to take additional measures such as testing and other prevention, they were being treated differently than similarly situated vaccinated employees in violation of the statute. Additionally, the Plaintiffs alleged that the University had a bonus program to encourage vaccination, which only vaccinated employees were eligible for.
The Appellate Court found that this was enough to survive a motion to dismiss and reinstated that portion of the case. It should be noted that a motion to dismiss is a high standard and serves to test the sufficiency of the complaint to state an actionable claim. It is not a judgment on the merits. Ennis Britton will monitor this case as it proceeds and will provide important updates to our clients.