Ohio Widow’s Action Against Ford for Failure to Implement Substance Abuse Policy is Barred by Exclusivity Defense

Post-Mortem Shows Marijuana, Fentanyl, and Alcohol in Deceased Employee’s System

In what appears to be the first case of its kind—an action filed against an employer for its allegedly inadequate measures in implementing the company’s substance abuse policy—an Ohio appellate court recently held that the exclusive remedy provision of the state’s Workers’ Compensation Act [see Ohio Rev. Code § 4123.74] barred a wrongful death action filed against Ford Motor Company following the death of one of its employees who had collapsed while on duty at work and who later was found to have marijuana and fentanyl in his system, as well as a blood alcohol level of .08 at the time of his death [Parker v. Ford Motor Co., 2019-Ohio-882, 2019 Ohio App. LEXIS 959 (Mar. 15, 2019)]. The employee’s widow had alleged, in relevant part, that Ford had a company policy prohibiting substance abuse, that Ford had failed to implement the policy in the workplace, and that Ford’s failure to implement the policy induced employees like her husband to possess and use drugs and alcohol in the workplace.

Background

According to the complaint, the allegations of which the trial court was required to take as true, Austin Parker, a full-time employee of Ford, collapsed while on duty at work. The employee was transported to a hospital, where he later died. A toxicology report indicated that he had marijuana and fentanyl in his system and that his blood alcohol level was .08. In her wrongful death action, Parker’s widow alleged Ford’s failure to implement its substance abuse policy induced employees like Austin to possess and use drugs and alcohol in the workplace.

Ford filed a motion to dismiss, arguing that it was entitled to immunity under Ohio’s workers’ compensation system because the complaint failed to allege an intentional tort. Alternatively, it alleged that Ford did not owe Parker a duty to prevent him from abusing drugs or alcohol. Following a hearing, the trial court granted Ford’s motion to dismiss on exclusivity grounds and the widow appealed.

Exclusive Remedy/“Substantially Certain” Exception

The Court first noted that pursuant to Ohio Rev. Code § 4123.74, and the Ohio Constitution [Article II, Section 35], employers were conferred with immunity for a majority of workplace injuries, and an employee’s exclusive remedy for such injury resided within the workers’ compensation system. The Court also noted, however, that an employer could be held liable outside the workers’ compensation system for an intentional tort (and that Ohio followed the “substantially certain” rule [see Larson Workers’ Compensation Law § 103.04[2][b] for the “Ohio Story”].

At Most Negligence

The Court observed that Parker’s widow had alleged that Ford maintained a substance abuse policy, yet its employees were not subjected to any checks or tests to ascertain if there were any violations of the policy. She added that Ford’s lack of supervision, and failure to implement the substance abuse policy induced employees like her husband to possess and use alcohol and drugs at the workplace. She further alleged that Ford’s failures had caused her husband’s death.

The Court saw things differently. It stressed that even accepting all allegations in the complaint as true, and making all reasonable inferences in favor of Parker, the complaint nevertheless failed to allege that Ford deliberately intended to cause injury or death to Parker. At most, the complaint alleged negligence and/or willful negligence. That was insufficient to avoid the exclusive remedy defense; the trial court’s judgment was affirmed.

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