*By Jason Rossiter
In a 4-1 vote on Thursday, the Ohio Civil Rights Commission (“OCRC”)
approved regulatory changes to the Ohio Administrative Code concerning
pregnancy leave. If enacted, Ohio would join 18 other states and the
District of Columbia in requiring private employers to offer more
generous maternity benefits than required under federal law.
If the new regulations are enacted, Ohio employers would be
required to grant pregnant employees at least 12 weeks of unpaid leave.
Additionally, employers would be required to offer light-duty positions
to pregnant employees if those positions are offered to workers
temporarily disabled as a result of an on-the-job injury. Finally,
employers would be required to reinstate employees to their original
job, or to a position of like status and pay, upon their return from
pregnancy leave.
Unlike the FMLA, the Ohio regulations would apply to virtually
all Ohio employers and employees. While the FMLA applies to employers
with 50 or more employees and contains minimum service requirements, the
Ohio rules would apply to employers with more than four employees and
would take effect on the first day of employment. There is an exception
in the rule for employers who are able to demonstrate a business
necessity for not following this requirement.
If enacted, the revised regulations present an additional
consideration for Ohio employers. Employees covered by the FMLA who
have previously exhausted their FMLA leave due to an unrelated health
condition would be entitled to pregnancy leave under Ohio law. Thus, in
certain instances, it is possible that a pregnant employee could take
24 weeks of unpaid leave in a single year.
Possibly as early as November or December, the OCRC will file
the revised regulations with the Joint Committee on Agency Rule Review
(“JCARR”). JCARR may then decide whether the commission acted within
its administrative authority when it approved the regulatory changes.
With congressional approval, JCARR can invalidate all or part of the new
regulations. In the alternative, the committee can approve the changes
without a vote of the Ohio House and Senate. If approved, the changes
would take effect in 30 days. If JCARR decides to take no action, the
new rules take effect 41 days after they are filed.
Employer-friendly lobbying groups, such as the Ohio Chamber of
Commerce, have indicated their opposition to the revised regulations.
According to published media reports, the Chamber intends to argue that
the OCRC exceeded its authority by approving the revised regulations.
It remains to be seen what action JCARR, comprised of legislators of
both major political parties, will take.
Employers should be aware of the potential changes to the Ohio
Administrative Code and the increased protections afforded to pregnant
workers. Zashin & Rich will continue to monitor this important
development and provide our clients with updated information as it
becomes available.
*Jason Rossiter has extensive experience
representing employers in litigating and arbitrating workplace disputes
in Ohio, California and throughout the country. For more information
about pregnancy discrimination or any other employment-related tort,
please contact Zashin & Rich at 216.696.4441.
