School Law Review - September 2022

Feds Extend Critical Child Nutrition Waivers

Table of Contents

September 2022 Feds Extend Critical Child Nutrition Waivers

1

U. S. Department of Education Releases Proposed Changes to Title IX Regulations

2

Boards May Permit Arms Within School Safety Zones

3

Columbus Public Starts the School Year with a Brief Strike

4

OFCC Releases Safety and Security Grant Regulations

5

Preschool Regulations Changes Adopted

by State Board

6

School District was not Deliberately Indifferent to Disability Discrimination

6

New Tenth Circuit Case Applies Mahanoy

7

BWC Update

8

In crucial 11th hour action, President Joe Biden signed the “Keep Kids Fed Act of 2022” on June 25, 2022. This Act extends important funding and flexibility for communities to provide children with healthy meals, a program that was set to expire on June 30th, through summer 2022 and into the 2022-2023 school year.

The Act extends support and flexibility t o s chools a nd d aycare p roviders t o respond to supply chain challenges and high food costs for the coming school year. The Act also provides much-needed financial support ($3 billion) to address ongoing supply chain disruptions, inflation, food cost spikes, and rising gas prices, by providing temporary increases in reimbursement rates for school meals. This could in turn increase the number of free meals available to students.

The Keep Kids Fed Act will: • Extend flexibilities for summer meals in 2022. This will make it easier to feed all students during the summer months, particularly those in rural areas, through flexible options like meal delivery and grab-and-go.

• Extend school meal program administrative and paperwork flexibilities through the 2022-2023 school year. This will help schools streamline their meal operations and continue operating despite supply chain disruptions.

• Increase the reimbursement rate for school lunch and school breakfast to help offset the increased cost of food and operating expenses for schools. Schools will receive an additional 40 cents more for each lunch and 15 cents more for each breakfast served.

Cincinnati 1714 West Galbraith Rd Cincinnati, OH 45239 (513) 421-2540 Columbus 300 Marconi Blvd, Suite 308 Columbus, OH 43215 (614) 705-1333 Cleveland 5000 Lombardo Center, Suite 120 Cleveland, OH 44131 (246) 487-6672

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September 2022

• Help daycares and home providers in the Child and Adult Care Food Program offset increased costs by providing an additional 10 cents per meal and streamlining reimbursement rates.

“Schools and parents can rest easy knowing that help is on the way so kids can continue getting school and summer meals,” said Debbie Senator Stabenow, chair of the Senate Committee on Agriculture, Nutrition and Forestry. “The President and Congress have made sure school and summer meal programs get much-needed support to deal with ongoing food service issues and keep kids fed.”

More information regarding the impact of the Act can be found at https://edlabor.house.gov/imo/media/doc/keep_kids_fed_act_bill.pdf

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U. S. Department of Education Releases Proposed Changes to Title IX Regulations In compliance with executive order 14021 and in celebration of the 50th anniversary of Title IX of the Educational Amendments of 1972, U.S. Department of Education release proposed changes to the regulations implementing Title IX and have invited public comment once the proposed amendments are published in the Federal Register for a period of sixty days.

The 702-page document highlights include: • An express provision that discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; • The obligation to adapt and disseminate Title IX nondiscrimination policies and grievance procedures; • The requirement to train all employees on the obligation to address sex discrimination, including sexual harassment, in its education programs and activities, with additional training for Title IX coordinators, investigators, common decision makers, and other persons who are responsible for implementing the grievance procedure as well as those who have authority to modify or terminate supportive measures, facilitators of informal resolution processed; • The requirement that the Title IX coordinator consult with the student’s IEP or Section 504 team if the complainant or respondent is a and elementary or secondary school student with a disability, to ensure compliance with the IDEA and Section 504 throughout the Title IX grievance process; • Require school officials to take prompt and effective action to end sex discrimination regardless of whether school officials have actual knowledge of the alleged discrimination or harassment; and, • Expands the bases for appealing the dismissal of a complaint.

What this means for schools: As this is the first time that the Title IX regulations have been revised since the 2020 regulatory revisions, schools should pay careful attention to the proposed updated grievance procedures, the expanded definitions, and the extended requirements to protect all students from sex discrimination and harassment regardless of sexual orientation or gender identity.

Stay tuned for more analysis for these proposed regulations in the coming months.

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Boards May Permit Arms Within School Safety Zones In the past few years, some Ohio school districts have attempted to address school safety issues by permitting certain school employees to carry guns within school safety zones. A year ago, in the case of Gabbard v. Madison Local Sch. Dist. Bd. Of Edn., the Supreme Court of Ohio effectively eliminated that option. In Gabbard, the Supreme Court held that as a prerequisite for carrying a gun in a school zone, a school employee must either: (1) complete the 700-plus hour basic peace officer training program, or (2) have previously served at least twenty years as an active-duty peace officer.

In direct response to Gabbard the General Assembly passed H.B. 99 with the purpose “to expressly overrule” the Gabbard decision.

H.B. 99 passed on June 1, 2022 and was signed by the Governor on June 13, 2022. It will take effect on September 12, 2022.

The law as amended by H.B. 99 eased the requirements for authorizing individuals to have weapons in a school safety zone. The new requirements consist of the following: • Either the individual has successfully completed the new curriculum and training established under the bill (described below), or the person has received a certificate of satisfactory completion of an approved basic peace officer training program or is a law enforcement officer; and • The board has notified the public in a specified manner that the board or governing body has authorized the arming of one or more persons within a school it operates.

A school safety zone is defined to include a school building, school premises, school activities and school buses. Individuals authorized to be armed must complete an annual background check. Regarding school resource officers, the statute requires that individuals hired to serve as special police officers, security guards, or similar law enforcement or security positions still must complete the basic peace officer training program or have twenty years of active-duty police experience.

HB 99 also created the Ohio School Safety and Crisis Center (“OSSCC”), which will be administered by the Department of Public Safety. The OSSCC will be operated by the newly formed Ohio Mobile Training Team, which will be comprised of licensed regional peace officers and armed forces veterans who will work in partnership with schools. The Mobile Training Team is tasked with developing curriculum and providing instruction and training that follows the private investigator and security guard firearms training guidelines to enable individuals to convey deadly weapons or dangerous ordnances into a school safety zone. The training must at a minimum include the following: • Mitigation techniques; • Communications capabilities and coordination and collaboration techniques; • Neutralization of potential threats and active shooters; • Accountability; • Reunifications; • Psychology of critical incidents; • De-escalation techniques; • Crisis intervention; • Trauma and first aid care; • The history and pattern of school shootings; • Tactics of responding to critical incidents in schools; • At least four hours of training in scenario-based or simulated training exercises; • Completion of tactical live firearms training; and • Realistic urban training.

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In contrast to the 700-plus hours mandated by Gabbard. Under HB 99, the initial training requirements may not exceed twenty-four (24) hours in length, and requalification training is limited to eight (8) hours. However, nothing prevents a board of education from requiring additional training. Boards of education and governing bodies must pay all fees for employee training provided through the OSSCC. The law also permits school boards to adopt their own training curriculum in lieu of the above, but it must include the topics listed above and be approved by the OSSCC. The Director of Public Safety is required to appoint a chief mobile training officer and sixteen regional mobile training officers. The officers appointed to serve on the Mobile Training Team are required to provide services to public and nonpublic schools regarding school safety and security. They may be utilized by school administrators to assist in developing building emergency management plans, assist in strategic communications between federal, state and local law enforcement in the event of an emergency, offer tactical emergency medical services training to schools, promote the use of the SaferOH tip line, enforce rules created by the Department of Public Safety, provide instruction in school security and safety, and offer training opportunities for school employees. Upon request, administrators must provide a copy of the school’s emergency management plan to the regional mobile training officers.

Another requirement of HB 99 is that school boards must provide the OSSCC with a current list of qualified personnel they have authorized to convey deadly weapons or dangerous ordnance into school safety zones. This list is not considered a public record under the Ohio Public Records Act, codified in R.C. 149.43.

Columbus Public Starts the School Year with a Brief Strike The start of school for the Columbus Public School District made national news, but not for a good reason. Teachers, librarians and counselors in Ohio’s largest school district began the school year on strike when the Columbus Education Association (“CEA”) and Columbus City School District Board of Education (“Board of Education”) failed to reach a deal on a successor agreement during more than six months of negotiations that carried over late into the summer. The CEA represents more than 4,500 staff members at Columbus City. The union had not gone on strike since 1975.

The strike forced the Board of Education to implement remote learning on the first d ay o f s chool w ith s ubstitute t eachers p roviding instruction to the district’s 47,000 students. Picket lines were formed at 19 of 100 Columbus City schools. The strike lasted a total of three days before a deal was reached and a final contract ratified by 71% of bargaining unit members who voted on it. In-person school resumed the following Monday.

Prior to reaching an agreement, CEA was seeking an 8% increase in wages, as well as commitments to improve conditions in outdated buildings, smaller class sizes, and full-time specials with reduced travel time for specials teachers. In the final s ettlement, t he B oard o f Education committed to providing climate-controlled buildings for all school buildings by 2025-2026, and also agreed to a reduction in class sizes for all grades, paid parental leave for all teachers, and a 4% wage increase for each of the three years of the contract. Additionally, the Board of Education agreed to limit the number of buildings that art, music and PE teachers may be assigned to.

Strikes among school bargaining units remain rare in Ohio. However, as schools grapple with staff shortages, reduced funding, and residual learning gaps from the pandemic, there is a general sense in the field that strikes may become more frequent in the near future. Strikes necessarily require school boards and administrative teams to expend a great deal of effort and resources to manage. It is critical as the treat of strike nears that school districts work closely with legal counsel and crisis management firms to develop and implement an effective strike management plan. We are here to help in times such as these. In the meantime, we will continue to monitor the bargaining climate in Ohio and our team of attorneys are prepared to support our client districts in the bargaining process.

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OFCC Releases Safety and Security Grant Regulations In July, the OFCC released guidelines to implement the School Safety and Security Grant funds allocated to it through HB 687, effective September 13, 2022. The bill allocated $100 million, approximately $53 million of which is available for new applicants.

The 96-page document found here, (link - https://ofcc.ohio.gov/Portals/0/Program%20Guidelines.pdf ) provides guidance on eligibility criteria, application requirements, review and award information as well as specific g uidance on t he various types of improvements authorized under the grant.

Who is eligible?

City, local, exempted village and joint vocational school districts (as well as community schools, stem schools and chartered non-public schools) are eligible for the funds so long as there is a building within the district eligible for a grant project. An “eligible building” means a classroom facility serving the educational needs of students that: 1.

has not had construction completed within the prior five years under any of the programs authorized under Chapter 3318 of the Revised Code (CFAP, ELPP, etc.), and

2.

has not received grant funding under the School Safety Grant Program established in S.B. 310 of the 133rd General Assembly.

What is the amount of the Grant and what can be done with the funds?

Each eligible District can receive up to $100,000 to be used for “a physical security enhancement, equipment, inspection and screening equipment, or other expenditure included on the Authorized Equipment List (AEL).” The funds cover installation labor as well as professional design fees. Grant recipients must contract for the work by December 31, 2022 and it must be completed by September 30, 2024, unless the Commission grants an extension of time.

The guidelines also specify work that would be ineligible for funding: 1.

any work completed before January 1, 2022

2.

any work not procured in accordance with federal procurement guidelines

3.

design or consulting fees in excess of 15 percent of the grant amount (e.g., consulting companies)

4.

vulnerability assessment costs

5.

fees paid to independent consultants or sub-contractors to prepare or submit the grant application

6.

any associated personnel costs by the school or district

How do districts apply?

Though not released yet, districts will apply through the application portal provided by the OFCC. A OSSC Security and Vulnerability Assessment must be completed as part of the application process. Districts can apply for multiple school buildings and must do so on a single application.

How will the applications be evaluated?

According to the guidelines, “Commission and OSSC staff will evaluate the applications based upon several factors including these guidelines, published evaluation criteria, and laws and requirements of the program. Additionally, the review and evaluation may include requests for clarification or supplemental information. Commission and OSSC staff will complete their review, analysis and assessment and develop a recommendation for grant awards to the Executive Director of the Commission (“Executive Director”) for approval.”

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More details will be forthcoming and we will of course keep you posted as always. Also, keep in mind that there are other grant opportunities. For example, Ohio BWC provides a safety and security grant of up to $40,000 for purchases of equipment to “substantially improve the safety and security of facilities, and to reduce or eliminate injuries or illnesses associated with providing educational services to children.” An additional $15,000 can be obtained for HVAC work. There is also a federal grant finder tool online. (link - https://www.schoolsafety.gov/grants-finder-tool).

When is the application deadline?

October 3, 2022 at 11:59pm. Applications can be submitted through the Ohio Grants Partnership Portal. More information for submitting an application can be found here.

Preschool Regulations Changes Adopted by State Board Preschool directors will be able to breathe a little easier heading into the upcoming school year, thanks to the State Board of Education’s June 2022 vote to adopt changes to the definitions of two preschool classrooms under state regulations. This action came about at the June 14th meeting after school districts and other stakeholders voiced strong opposition to a prior version of the regulations that proved very difficult to implement.

Under the revised rule, codified at OAC 3301-51-11, a “public school preschool general education classroom,” which is taught by a general education teacher will now be defined to permit a maximum of eight students with disabilities. The prior version of the rule limited the number of special education students to a maximum of six. The definition has been further amended to clarify and permit fifty percent or fewer of students with disabilities to be enrolled in the classroom. The teacher still must meet the lead teacher qualifications. Finally, a preschool general education classroom has officially been added to the list of placement options along the Least Restrictive Environment continuum for preschool students with disabilities under section (J)(2) of the rule.

Perhaps most importantly, the definition of a “public preschool integrated classroom” has been amended to allow for fifty percent or fewer students with disabilities. The prior version of the regulation rigidly required that these classrooms remain at an exact fifty/fifty split of regular education and special education students at all times, which proved nearly impossible for most school districts to stay compliant with long term.

The proposed rule change was open for public comment from May 19 through June 1, 2022. The Ohio Department of Education received more than 130 comments from stakeholders. The State Board approved the resolution and rule revision in one meeting, suspending the rules to a process that normally takes two meetings to allow district officials time to plan for the upcoming school year.

Ultimately, the changes will help districts tackle situations such as when students move in or out of the district during the year or when students who enroll initially as typical are later identified as eligible for special education.

School District was not Deliberately Indifferent to Disability Discrimination An Ohio school district promptly responded to allegations of bullying against two unrelated students with disabilities which allowed it to defeat claims that it was deliberately indifferent to disability harassment.

The students alleged that they were bullied due to their disabilities through being picked on verbally and physically with resulting physical injuries, and that the school district never took steps to remedy the bullying. In order to establish liability for the school district for disability-based peer-on-peer harassment, a student must show (1) s/he is an individual with a disability, (2) s/he was harassed based on his/her disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his/her Ennis Britton

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harassed based on his/her disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his/her education and created an abusive educational environment, (4) the school know about the harassment, and (5) the school was deliberately indifferent to the harassment. Deliberate indifference occurs when the school district’s response to the harassment is clearly unreasonable when considering the circumstances. This deliberate indifference review will consider the nature of the harassment, the length of the harassment and the school’s overall response.

The Court found that in each instance alleged of physical harm the school district immediately responded in a reasonable and appropriate manner that was proportionate to the student’s conduct. For example, when one of the students was pushed into a wall at recess by another student, discipline was immediately provided to the other student for that day and the next. The Court also concluded that the school was permitted to respond how it saw fit, and the school was not deemed to be deliberately indifferent because it refused to accept the parent’s demanded response (which was for the school to provide a one-on-one aide at recess). The Court agreed the evidence showed that the injuries and verbal taunts stopped when the school took the disciplinary actions against the offending students. As a result, the school did not have any reason to think its actions were ineffective; they worked. Therefore, the Court determined that the school district was not deliberately indifferent to the allegations of bullying.

Additionally, for the allegations of verbal bullying, the Court was not provided any details of this harassment, when it occurred, how it occurred, or how the school responded. Because of this, the Court stated that the school district’s actions were not deliberately indifferent because the allegations were “too vague.” A school cannot reasonably respond to allegations of bullying if it does not know the specifics of the harassment.

As a result of the school district’s prompt and thorough actions in allegations of bullying, the Court dismissed the case in its entirety.

Doe v. Nelsonville-York Sch. Dist. Bd. Of Educ., 81 IDELR 45 (S.D. Ohio 2022) What this means for your District When school districts take allegations of bullying seriously by timely responding, investigating, and disciplining appropriately, regardless of whether it relates to a student’s disability, they can help to defend against claims of discrimination or deliberate indifference. These cases will always be fact specific, but the important items for administrators to keep in mind to help build a case against deliberate indifference are: 1.

Take allegations seriously 2.

Timely respond 3.

Seek details about the allegations 4.

Investigate 5.

Discipline when appropriate 6.

Provide a summary response to the family 7.

Review to see if the discipline stopped the bullying. If it did not, revisit the situation.

New Tenth Circuit Case Applies Mahanoy IC1.G. v. Siegfried, No. 20-1320; 2022 WL 2447526 (10th Cir., July 6, 2022) The United States Court of Appeals for the Tenth Circuit Court (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) recently released a decision applying Mahanoy Area School District v. B.L. (2021) to an expulsion involving off-campus behavior in favor of the student.

A student took a picture of his friends wearing wigs and hats, including “one hat that resembled a foreign military hat from the World War II period.” The student posted that picture on the social media platform Snapchat and captioned it, “Me and the boys bout to exterminate the Jews.” He removed it within a few hours, posting, “I’m sorry for that picture it was meant to be a joke.”

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In a completely unpredictable turn of events, one of the friends included in the Snap Chat group took a screenshot of the post and shared it with her father. The father then reported it to the police and the school district. The student was ultimately expelled for one year. The following policies were cited in support of the expulsion: (1) JICDA(13) prohibiting verbal abuse in a school building or on school property (overruling the hearing officer’s finding that JICDA(13) did not apply); (2) JICDA(19) regulating “behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel”; (3) ACC-R prohibiting intimidation, harassment, or hazing by directing an obscene comment or gesture at another person or insulting or challenging another person or by threatening another person; and (4) JKD-1-E, which allows for suspension, expulsion or denial of admission for behavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel including behavior that creates a threat of physical harm.

The student, through his parents, filed suit, alleging various violations of his First and Fourteenth Amendment rights. The district court noted that the widespread use of social media, which was not present at the time of the decision in the seminal student free-speech case, Tinker Des Moines Independent Community School District (1969), has limited the utility of the distinction between on-campus and off-campus speech. The district court held that it was foreseeable that the student’s post could cause a substantial disruption and interfere with the rights of others.

On appeal, the court began its analysis with a discussion of the Mahanoy case, noting that the Supreme Court found it important that the student in that case (1) spoke “outside of school hours from a location outside the school”; (2) “did not identify the school in her posts or target any member of the school community with vulgar or abusive language”; and (3) “transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends.” The appeals court found the same could be applied to the case before it and that the two fact patterns were materially similar.

The school district argued that it had a duty to protect students from harassment, but the court rejected the notion that the school district was standing “in loco parentis” when the student made the post. The doctrine of in loco parentis would only apply “where the children’s actual parents cannot protect, guide, and discipline them.” The court held that Mahanoy is clear that “schools may not invoke the doctrine to justify regulating off-campus speech in normal circumstances” (i.e., not at school or a school function). Also, in normal circumstances, the court found, the student’s speech at issue here would be afforded First Amendment protection because it did not constitute a true threat, “fighting words,” or obscenity.

The court dismissed the school district’s arguments that the post was more than just a crude attempt at a joke about the Holocaust but rather was “hate speech targeting the Jewish community,” as a justification to impose discipline here. The court, citing to Mahanoy recognized that offensive, controversial speech can still be protected. The Court completely rejected the notion that the school district had a basis to discipline for harassment or because the speech was hateful. “Defendants cannot claim a reasonable forecast of substantial disruption to regulate C.G.’s off-campus speech by simply invoking the words “harass” and “hate” when C.G.’s speech does not constitute harassment and its hateful nature is not regulable in this context.”

With further regard to substantial disruption, the court did not find the following evidence sufficient to establish a substantial disruption was present or reasonably foreseeable: (1) that principal received emails about the post (the record reflected an email chain with one family); (2) that the post had been widely circulated throughout the area’s Jewish community; and (3) that the post had scared, angered, and saddened a family who said their son was worried about having a class with C.G. The court also rejected evidence that the school district addressed the posts with students during an advisory period, that was otherwise already scheduled to address such matters, as a substantial disruption.

Notably, in finding that the principal had not set forth sufficient evidence to support his feeling that the learning environment had been impacted, the court opined that “impact” does not necessarily equate to substantial disruption.

A question about whether the school district was entitled to qualified immunity was sent back to the trial court for further proceedings so there is more to come from this case.

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What does this mean for my District?

This is not a controlling decision for Ohio, which is in the Sixth Circuit. However, it is an indication that courts post-Mahanoy are going to require substantial evidence to establish a substantial disruption. The Mahanoy case and similar decisions such as this one will make it difficult if not impossible to impose discipline for off-campus speech, that is not connected to a school event, is not directed at the school, students, or school personnel, and which is made in the context of private social media. As the court held here, that the student risked the post being leaked to the school community is not sufficient either. Discipline in the context of off-campus social media or other private speech requires careful analysis of the facts and law before moving forward. Please do not hesitate to contact an Ennis Britton attorney if you have questions regarding a particular discipline matter.

BWC Update Below are some recent developments in legislation and case law related to worker’s compensation law in Ohio.

Ohio HB 447 This bill, which will become effective September 23, 2022 codifies that injuries suffered by employees engaged in remote work are compensable. Since the beginning of the pandemic and the expansion of remote work opportunities, this has been an issue open to interpretation based on existing BWC law. The new law, unfortunately, does not settle these questions The bill amends the exceptions to the definition of the term injury in RC 4123.01 to specifically include an “Injury or disability sustained by an employee who performs the employee's duties in a work area that is located within the employee's home and that is separate and distinct from the location of the employer, unless all of the following apply: (a) The employee's injury or disability arises out of the employee's employment. (b) The employee's injury or disability was caused by a special hazard of the employee's employment activity. (c) The employee's injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer In other words, an injury sustained by a remote worker at home is not compensable unless a, b and c above apply. Many school districts do not have remote work opportunities for obvious reasons. However, those that do must realize that workers’ compensation claims are still possible even for remote workers who may not be under any direct supervision. Issues of causation, special hazards in the home, and the concept of “exclusive benefit of the employer” are sure to be the subject of litigation going forward.

Hinerman v. Savant Sys., Inc., 2022-Ohio-2857 The Court of Appeals for the Fourth District of Ohio (Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton, and Washington), has reversed the decision of a trial court to allow a claim by an injured worker sustained in an employee parking lot, even though the injured worker was in the “zone of employment” at the time of injury.

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Those familiar with BWC rules may have heard of the “coming and going” rule which provides that in general, “fixed situs” employees (those with a single or several regular work locations) injured while traveling to and from work are not entitled to compensation from BWC or a self-insured employer. As with seemingly all rules, there are exceptions. One exception to this rule is that an employee injured in the “zone of employment,” which is an area controlled exclusively by the employer, such as a parking lot, may have a compensable claim. Hence, we have seen compensable injuries when for example an employee slips on ice in a parking lot, or is dragged by a loose dog in the employee parking lot, or is struck by an automated traffic gate under the employer’s control while walking to her car during a paid morning break.

Here, the injured worker arrived at a factory for her shift. She parked in one of the two lots reserved for employees to park. The lots provide the only means of ingress or egress to the factory. The injured worker was conversing with a coworker while exiting her vehicle and slammed her finger in the vehicle door. She had to unlock the door to free it. She suffered a fracture of her right pinky. She went inside and went to the first aid station to report the injury. She filed a claim for the injury to her pinky and her development of a liver infection from the antibiotics she was prescribed for her finger.

The trial court concluded the injured worker had a compensable injury. The court explained that the injured worker was in the zone of employment at the time of her injury because she was in a parking lot owned and controlled by the employer. She was “just about to start her shift” and was acting for the benefit of the employer because she had arrived “for the specific purpose of going to work.” The Court noted that the injury was due to the injured worker’s own carelessness, but pointed to a previous decision in which an employee tripped on their own feet in the parking lot and was found to have a compensable injury.

The Appellate Court noted that the standard for a compensable workers’ compensation injury is that the injury occurred ‘in the course of, and arising out of, the injured employee’s employment.’ It is a two-pronged test. Here, the Appellate Court could agree that the injury happened within the “zone of employment” and, even assuming that the injury happened in the “course and scope of employment,” the Court could not agree that the injury arose from the employment.

The Court found that the employer did not receive much benefit from the mere presence of the employee in the parking lot having a personal conversation. Although she was positioned to get to work on time and return clean safety clothing, she had not arrived at the place where her work was to be performed. Furthermore, even though traversing the parking lot was one of the hazards of the injured worker’s employment and was an “incident to the day’s work,” the injured worker was not injured traversing the parking lot. She was injured closing the door of her truck.

Even though the injured worker was hurt in an employer-controlled parking lot somewhat near her workplace, she was not injured due to an employer-controlled device in the lot, a physical characteristic of the lot, a hazard on the ground like ice, a motor vehicle accident, or any other risk or hazard which was incident to traversing the parking lot and therefore incident to the performance of her work. She was injured due to her efforts to protect her personal property in a location where her presence provided little benefit to her employer.

Accordingly, the Court of Appeals remanded the case back to the trial court with instructions to enter summary judgment in favor of the employer.

The practical takeaway here of course is that because liability typically arises where there is some hazard of the lot that contributes to the injury, employers should take care to regularly monitor employee parking and ingress and egress routes to ensure that there are no hazards present such as uneven pavement, trip hazards, faulty equipment, etc.

Kerr v. OhioHealth Corp., 2022-Ohio-2697 In another “coming and going case,” that actually turned out not to hinge on that rule, the Court of Appeals for the Tenth District of Ohio (Franklin) ruled against an injured worker who slipped on ice and fell in the parking lot of a restaurant while on an unpaid break.

The injured worker in this case provided psychological assessments to various clients in their residences and nursing homes. He was also responsible for making phone calls and charting while not with patients. This happened mostly at his own home but sometimes phone calls had to be made in the field.

Recall that in the case above the coming and going rule applies to “fixed situs” employees. The Trial Court relied on certain precedents interpreting the rule to find that the injured worker here was a fixed situs employee because each site the injured worker visited was a fixed situs.

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The Court of Appeals disagreed, distinguishing the cases relied on by the Trial Court from the instant case. The Court of Appeals found that while there is precedent for the notion that employees moving to different job sites even daily can be considered fixed situs, there is no such precedent to apply that status to an employee who travels to different locations on the hour, within a day and has duties that are sometimes performed while in the course of travel or otherwise between the appointments. Therefore, the Court found the employee was not fixed situs and the coming and going rule did not apply.

However, in a cautionary reminder not to celebrate too early, the Appeals Court agreed with the Trial Court that regardless of the applicability of the coming and going rule, the injury from the fall did not occur in the course and scope of and arise from the employment.

The injured worker in this case provided psychological assessments to various clients in their residences and nursing homes. He was also responsible for making phone calls and charting while not with patients. This happened mostly at his own home but sometimes phone calls had to be made in the field.

Recall that in the case above the coming and going rule applies to “fixed situs” employees. The Trial Court relied on certain precedents interpreting the rule to find that the injured worker here was a fixed situs employee because each site the injured worker visited was a fixed situs.

The Court of Appeals disagreed, distinguishing the cases relied on by the Trial Court from the instant case. The Court of Appeals found that while there is precedent for the notion that employees moving to different job sites even daily can be considered fixed situs, there is no such precedent to apply that status to an employee who travels to different locations on the hour, within a day and has duties that are sometimes performed while in the course of travel or otherwise between the appointments. Therefore, the Court found the employee was not fixed situs and the coming and going rule did not apply.

However, in a cautionary reminder not to celebrate too early, the Appeals Court agreed with the Trial Court that regardless of the applicability of the coming and going rule, the injury from the fall did not occur in the course and scope of and arise from the employment.

The injured worker was on a personal errand. Employees who regularly travel for work (non-fixed situs. Enough Latin already, yes?) may be barred from making a claim if on a personal errand while injured. Previous cases have found an employee slipping in the parking lot from his employer-provided rental to his employer-provided hotel compensable. A truck driver’s walk to a restaurant while on a federally mandated rest? Not compensable. Traveling salesman in an auto accident driving home at the end of the day? Compensable.

Painter stopping by his house to get some paint supplies on the way to another job site? Not compensable.

Here, the Court considered that the injured worker was injured during a 45-minute break in his visits and was “on his own.” There were no rules regarding where he could eat and he was not required to engage in any duties while doing so. These factors, among some others, taken together, supported a finding that the injured worker was on a personal errand at the time of the fall.

Using the coming and going rule as a defense is no easy feat and requires careful analysis of the facts and available precedents. Be careful before certifying a claim that arose under circumstances where an employee is injured while traveling, on the premises of another, or while in the parking lot or entering and exiting the same. Contact a member of the Ennis Britton Workers’ Compensation Practice Team to go over the facts and potential defenses.

Upcoming Presentations and Events September 21: Board of Revision HB 126 Update October 4: BASA Fall Conference (Presenting/Sponsor) October 6: Special Education Roadshow October 21: Chats from the Bus Stop Ennis Britton

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