Chapter 123:1-33 | Disability Leave

Rule 123:1-33-01 | State of Ohio disability leave program.

• Effective: September 1, 2024
• Promulgated Under: Other

(A) The department of administrative services ("the department") provides disability leave benefits to eligible state of Ohio employees.

(B) An employee who is eligible to receive disability leave benefits may receive disability leave benefits due to a disabling illness, injury, or condition.

(C) Procedures to be followed for determining an application for disability leave benefits.

(1) Employees will submit an application for disability leave benefits to the director of the department or the director's designee within twenty calendar days from the last day worked due to the disabling illness, injury, or condition.

(2) Employees will submit a request to extend disability leave benefits within twenty calendar days of the ending date of granted disability leave benefits or within twenty calendar days of the date of a written request for additional information.

(3) Employees will submit to the director or the director's designee, within twenty calendar days of a request to do so, medical documentation from a state licensed medical practitioner establishing that the employee's illness, injury, or condition prevents the employee from performing the duties of the employee's position, a similar position, or other duties within a transitional work program.

(4) The director or the director's designee is responsible for determining whether an employee is eligible and meets the specifications for receiving disability leave benefits due to a disabling illness, injury, or condition.

(5) Eligible employees who fail to file an application, a request for an extension, or the requested medical documentation relating to the claim within the deadline may have their disability leave benefits delayed to the date of the filing.

(D) Payment of disability leave benefits.

(1) Disability leave benefits will commence following a waiting period of fourteen consecutive calendar days from the last date worked due to the disabling illness, injury, or condition.

(2) Disability leave benefits will be paid at sixty-seven per cent of the employee's base rate as of the date the employee became disabled, up to a lifetime maximum of twelve months based on the employee's scheduled hours of work at the time of the filing of their claim. All disability leave benefits that were granted for claims filed on or after October 29, 2006, will be counted toward the twelve-month lifetime maximum limitation.

(3) An employee receiving disability leave benefits, and an employee during the waiting period, may indicate a desire to utilize accumulated sick leave, personal leave, and vacation leave balances, as well as compensatory time, to receive up to one hundred per cent of pay for time on disability leave or during the waiting period. Such supplementation will have an effective date as of the date the employee requests the supplementation. The sick leave, personal leave, and vacation leave balances, and compensatory time, will be paid at a rate equal to the employee's base rate of pay in effect at the time the employee became disabled.

(4) An employee who does not have sufficient accumulated sick leave, personal leave, vacation leave, or compensatory time to be paid during the waiting period will be considered to be on an approved unpaid leave of absence.

(E) Service credit. An employee receiving disability leave benefits will continue to accrue service credit for purposes of determining vacation benefits, annual step increases, longevity supplement, and retirement benefits. Vacation leave benefits will not accrue while an employee is receiving disability leave benefits. The period during which an employee is receiving disability leave benefits will not count toward an employee's probationary period.

(F) Insurance and premiums.

(1) For those benefits paid in whole or in part by the state, the employer's and employee's share of the health, life, and other insurance benefits will be paid by the employer during the time an employee is in a no pay status while the claim for disability leave benefits is being processed and during the period that the employee is receiving disability leave benefits. If an employee is in paid status while the claim for disability leave benefits is being processed, the employee is responsible for their share of health, life, and other insurance benefits.

(2) If an employee has exhausted disability benefits, the employee is not entitled to have health, life, or any other insurance benefit paid by the employer.

(3) If an employee's claim for disability leave benefits is subsequently denied and the employee had been in a no-pay status while the employee's claim was being processed, it is the employee's responsibility to reimburse the employer the insurance premiums paid on the employee's behalf.

(4) An employee receiving disability leave benefits may participate in an open enrollment period. Any change in the employee's health insurance benefits will be effective at the beginning of the benefit year.

(G) Termination of disability leave benefits. An employee's benefits will be terminated if the employee:

(1) Is removed from state service except as provided under rule 123:1-41-21 of the Administrative Code;

(2) Engages in any occupation for wage or profit that is the same or similar to their current state of Ohio position or has the same or similar physical or mental qualifications, except where the employee is engaging in transitional work, partial return to work, or light duty.

(3) Engages in any act of fraud or misrepresentation involving the disability claim including the alteration of attending physician statements;

(4) Fails to comply with the provisions of section 124.385 of the Revised Code or this rule;

(5) Is convicted of the commission of a felony; or

(6) Does not notify the appointing authority of a change of address.

(7) Fails to participate in a transitional work program that is agreed upon by both the employee's medical practitioner and the employee's appointing authority.

(H) Necessity of applying for retirement benefits.

(1) The following employees will apply for disability retirement benefits as set forth in paragraph (H)(2) of this rule in order to receive continued disability leave benefits:

(a) Disability retirement eligible employees who are nearing six months of continuous disability leave payments;

(b) Those employees whose physicians have deemed them permanently disabled; and

(c) Those employees whose total disability leave will exceed twelve months.

(2) To comply with the provisions of this rule, employees will complete all of the following:

(a) Submit an application to the applicable state employees' retirement system;

(b) Comply with all retirement system specifications; and

(c) Submit all information requested by the retirement system for disability retirement benefits.

(3) After the employee submits documentation establishing compliance with this provision, the employee may receive disability leave benefits in an amount that will bring the employee to sixty-seven per cent of the employee's base rate of pay as of the date the employee became disabled.

(I) Disability leave benefits are not payable for any disability caused by or resulting from:

(1) Any injury or illness received in the course of and arising out of any employment covered by any workers' compensation or federal compensation plan, or during any period in which the employee is receiving, or has been approved for, occupational injury leave, salary continuation, or lost time wages from the bureau of workers' compensation except as outlined in paragraphs (I)(1)(a) and (I)(1)(b) of this rule.

(a) In the case of any injury or illness that may be covered by the bureau of workers' compensation, an employee may file an application for disability leave benefits within twenty calendar days of the receipt of a denial order from the bureau of workers' compensation.

(b) Employees who do not intend to appeal a denial order will submit an affirmation of such with their application for disability leave benefits.

(c) Employees who have or intend to appeal a denial order from the bureau of workers' compensation on an initial claim may receive an advancement of disability leave benefits. All disability leave benefits received by the employee as an advancement will be reimbursed by the employee to the disability leave benefits program if the employee is awarded weekly wage payments by the bureau of workers' compensation for the same time period for which the advancement was made or the employee has been paid a lost time wage settlement.

(d) An employee who receives injury pay pursuant to section 124.381 or section 5503.08 of the Revised Code may be eligible for disability leave benefits when injury pay expires if the employee has received a final notice denying workers' compensation benefits and has applied for disability leave benefits within twenty calendar days of such notice;

(2) Attempted suicide, or self-inflicted injury with the intent to do bodily harm, unless there is a medical history of treatment within five years from the current date of disability for a psychiatric illness, in which case the director or the director's designee reserves the right to review the claim for consideration of a benefit award;

(3) Any act of war, declared or undeclared, whether or not the employee is in the armed forces. In the case of an employee who is a veteran of the United States armed forces, disability benefits will not be denied because the employee contracted the illness or received the injury in the course of or as a result of military service and the illness or injury is or may be covered by a compensation plan administered by the United States department of veterans' affairs;

(4) Participating in a riot or insurrection;

(5) Drug addiction or alcoholism. However, alcohol or other drug addiction diagnoses may be covered if the employee is receiving and complying with ongoing treatment and it is determined that such treatment program prevents the employee from working as documented by the treatment provider; or

(6) Any injury received or illness contracted in the act of committing a felony.

(J) Discipline of an employee receiving disability leave benefits. An employee receiving disability leave benefits may be disciplined pursuant to the provisions of section 124.34 of the Revised Code, an applicable collective bargaining agreement, or the appointing authority's policies. If the appointing authority conducts a pre-disciplinary investigatory interview, the employee may be granted administrative leave with pay for the duration of the interview. The employee will not receive payment of disability leave benefits for those hours spent on administrative leave with pay, nor will the hours count towards the employee's lifetime maximum benefit. If an employee is removed from service, disability leave benefits will be discontinued as of the date the employee is removed from service. The appointing authority is responsible for notifying the director or the director's designee of any employee removed from service who is receiving disability benefits.

(K) Appeals.

(1) Upon the denial of an employee's application for disability leave due to a medical issue, or upon the termination of disability leave benefits due to a medical issue, an employee may file an appeal to the director or the director's designee within thirty days of the date of notice of the denial or termination. If the employee provides new medical documentation with the appeal, the director or the director's designee will obtain a medical opinion from a third party to address the medical issue. The selection of a third party will be made within fifteen days of the appeal request unless an extension is agreed to by the parties. The third party will render a medical opinion within thirty days of the selection and the decision of the third party will be binding.

(2) Upon the denial of an employee's application for disability leave or upon the termination of disability leave benefits where no medical question is at issue, an employee may file an appeal to the director or the director's designee within thirty days of the date of notice of the denial or termination.

(L) The director or the director's designee will initiate all necessary steps to recover disability leave benefits or insurance premiums paid in error or paid as a result of fraud, or to make any needed adjustments to ensure that proper payment of benefits and insurance premiums has been made. When necessary, the director or the director's designee will request the attorney general to take appropriate action to recover improperly paid benefits or insurance premiums.

Last updated September 3, 2024 at 8:43 AM

Supplemental Information

Authorized By: 124.385
Amplifies: 124.385
Five Year Review Date: 5/15/2025
Prior Effective Dates: 6/18/2000, 7/30/2020

Rule 123:1-33-17 | Occupational injury leave and salary continuation benefits.

• Effective: July 30, 2020
• Promulgated Under: 119.03

(A) For purposes of this rule:

(1) "Allowed physical condition" - means a physical condition diagnosed by an approved physician that arises from an injury inflicted by a ward. It is also a physical condition resulting from substantial aggravation of a pre-existing condition, if such aggravation arises from an injury inflicted by a ward.

(2) "Approved physician" - means a psychologist, psychiatrist, or physician from the approved physician list. In the event an injury requires emergency room treatment, the emergency room physician will be considered an approved physician for purposes of the initial diagnosis and evaluation of the allowed physical or psychological condition.

(3) "Allowed psychological condition" - means a psychological condition, diagnosed by an approved psychiatrist or psychologist from the approved physician list that develops after, and is related to, the allowed physical condition.

(4) "Date of injury" - means the date the event triggering the claim occurred.

(5) "Disabled" - means the employee is unable to perform the essential functions of their job due to an injury while on-duty.

(6) "Inflicted by a ward" - means injured by a ward of the state in one or more of the following ways: (a) an attempt to subdue, control or restrain a ward's inappropriate behavior; (b) as the result of being physically harmed in the course of the employee's duty, as long as the injury was not accidental in nature or caused by the employee's own misconduct or negligence; or (c) during the pursuit of a ward in such circumstances where a ward attempts to flee following the inappropriate behavior listed in this paragraph.

(7) "Ward" - Means an inmate, patient, resident, client, youth or student.

(B) Eligibility.

(1) Occupational injury leave benefits (OIL). Each permanent employee employed by an agency listed in section 124.381 of the Revised Code who sustains an allowed physical condition or an allowed psychological condition filed on or after February 1, 2010 shall, pursuant to this rule and with the approval of the director of the department of administrative services (DAS), receive OIL. Any subsequent injury that is determined to be an aggravation of a previous injury for which OIL was approved shall not be considered an independent injury. It is the employee's responsibility to prove that the allowed physical condition or an allowed psychological condition was inflicted by a ward.

(2) Salary continuation benefits. All permanent employees, including employees not eligible for OIL as described in paragraph (B)(1) of this rule, who sustain physical injuries or other disabilities in the performance of and arising out of state employment on or after February 1, 2010 may apply for salary continuation benefits for each independent injury sustained.

(3) If the employee's OIL claim is denied and the workers' compensation claim is still pending, the employee may apply for salary continuation benefits.

(C) Application. In order to receive OIL or salary continuation benefits, the injured employee shall, within twenty days from the date of the injury, complete and submit the employee's portion of the claim application to the employee's appointing authority. If the employee is physically unable to complete the application, someone acting on the employee's behalf may complete and submit the application.

(D) Amount and length of benefit.

(1) OIL benefits. In no case shall the payment of OIL exceed nine hundred sixty hours per independent injury. A part-time employee's OIL benefits shall be based on the average number of hours worked during the six weeks immediately preceding the related injury, up to forty hours per week.

(2) Salary continuation benefits. In no case shall the payment of salary continuation benefits exceed four hundred eighty hours per independent injury. Any leave provisionally granted under OIL shall count towards the four hundred eighty hour maximum for salary continuation benefits.

(3) Payment. Payment of OIL or salary continuation benefits will begin immediately upon the employee's filing of an application, retroactive to the date the employee became disabled, and will be paid at the employee's total rate of pay.

(E) Other benefits. OIL and salary continuation benefits are in lieu of any other employer-paid leave or workers' compensation benefits. Employees receiving OIL or salary continuation benefits are in active pay status and shall continue to accrue sick leave and personal leave. During the time an employee is receiving OIL or salary continuation benefits under this rule, the employee shall be exempt from receiving vacation leave. OIL and salary continuation benefits shall not be charged against the employee's accumulated sick leave balance.

(F) Employee's responsibilities. In order to receive OIL or salary continuation benefits, the injured employee must also:

(1) Follow the agency's accident or injury reporting guidelines;

(2) Be evaluated by an approved physician to determine if the injury will keep the employee from performing the essential functions of the employee's position. If the employee is unable to schedule an appointment with an approved physician within forty-eight hours of the date of the injury, the employee must contact the agency's workers' compensation coordinator. The employee must continue to seek treatment from an approved physician for the duration of the benefit;

(3) Ensure that an approved physician completes and returns the DAS designated medical form;

(4) Demonstrate that any transitional work program offered by the agency is not appropriate based upon an approved physician's restrictions;

(5) Apply for workers' compensation benefits at the time that OIL or salary continuation is being requested; and.

(6) Receive approval from the bureau of workers' compensation for an additional injury allowance, in the case where, after an initial diagnosis, the injury is determined to more extensive and the employee requests an extension of benefits.

(G) Failure to be evaluated. If the employee refuses to be evaluated by an approved physician, the application for OIL or salary continuation benefits will be denied and will be reviewed by the bureau of workers' compensation as a normal request for workers' compensation benefits. If the employee has been paid any OIL or salary continuation benefits, the employee shall substitute sick leave, vacation leave, personal leave, compensatory time, or reimburse the employer for any benefits received.

(H) Appointing authority's responsibilities. The employee's appointing authority or designee must promptly review the employee's claim and forward the employee's paperwork to the director or authorized designee within five days of receiving the employee's application. In the case of OIL, the appointing authority or designee should also forward any documentation certifying or disputing that the injury was sustained in the line of duty and was inflicted by a ward. In the case of salary continuation benefits, the appointing authority should also forward any documentation certifying or disputing that the injury was sustained in the line of duty, as well as any witness statements.

(I) Medical treatment and return to work. It shall be the responsibility of the employee to receive necessary medical treatment and to return to active work status at the earliest time permitted by the approved physician.

(J) Termination of benefits. OIL and salary continuation benefits shall terminate when:

(1) The employee engages in any activity that adversely affects the employee's recovery;

(2) The employee engages in any outside activity for wage or profit if the outside activity is inconsistent with the employee's medical or psychological restrictions;

(3) The employee knowingly makes a false or misleading statement, or alters, falsifies, destroys or conceals any document in order to receive the benefit;

(4) The approved physician releases the employee back to work;

(5) The employee is incarcerated and the incarceration prevents the employee from coming to work;

(6) The employee's workers' compensation claim is denied by the bureau of workers' compensation;

(7) The industrial commission determines the employee has reached maximum medical improvement;

(8) The employee is disqualified from receiving workers' compensation benefits or if the employee accepts workers' compensation temporary total disability benefits; or

(9) The employee is no longer employed by the state.

(K) Denied claims.

(1) If an agency denies an employee's application for OIL on the basis that the injury was not inflicted by a ward, OIL shall cease. The employee may appeal the decision to DAS within twenty days of the postmark on the letter of denial and the decision of DAS shall be binding. If the employee's claim is approved by DAS, the agency shall render OIL benefits to the employee back to the time of the initial agency denial. If the employee's OIL claim is denied by DAS, the employee may be eligible for salary continuation benefits.

(2) If the bureau of workers' compensation denies the claim on the basis that the injury was not an allowed physical or psychological condition, OIL or salary continuation benefits shall cease. The employee may appeal the decision to the industrial commission. If the employee's claim is approved by the industrial commission, the agency shall render OIL or salary continuation benefits on the employee back to the time of the initial denial by the bureau of workers' compensation. If the employee's claim is denied by the industrial commission, the employee shall substitute sick leave, vacation leave, personal leave, compensatory time, or reimburse the employer for any benefits received.

(L) Insurance. An employee who receives OIL or salary continuation benefits is responsible for the employee's share of health insurance premiums.

(M) Transitional work program. An employee receiving OIL or salary continuation benefits may participate in a transitional work program pursuant to rule 123:1-33-07 of the Administrative Code. If a permanent employee is given a transitional work assignment with less than the employee's regularly scheduled hours, the employee may use OIL or salary continuation hours to supplement up to the amount of the employee's regularly scheduled hours. If an employee does not successfully complete a transitional work program, the employee may resume OIL or salary continuation benefits up to the number of hours that remain for the injury.

Supplemental Information

Authorized By: 124.09, 124.381
Amplifies: 124.381
Five Year Review Date: 5/15/2025
Prior Effective Dates: 5/24/1998, 2/1/2010