No doubt in recent weeks you have read or heard of a news article about the Ohio Civil Rights Commission’s (the “Commission”) proposed changes to sections of the Ohio Administrative Code, which implements Ohio’s anti-discrimination laws. The proposed changes concern pregnancy discrimination in the workplace. What follows is an overview of the current status of the proposed new rules and a discussion of the changes in store if the rules go into effect.
Where Are We Now?
Earlier this year, the Commission proposed a new rule which would require Ohio employers of nearly every size to grant 12 weeks of pregnancy leave to their pregnant employees when medically recommended, regardless of an employee’s length of service with the employer.
Before the proposed rule could become effective, however, the Joint Committee on Agency Rule Review (“JCARR”) must consider and not invalidate the rule. JCARR is a panel comprised of 10 members of the Ohio legislature charged with deciding whether or not the proposed changes comport with the Commission’s rulemaking authority and existing law.
JCARR held a hearing on Dec. 3, 2007; however, it did not address the validity of the rule, but instead sent the rule back to the Commission with instruction to provide a complete and accurate summary and analysis of the proposed rule’s anticipated financial impact on certain public employers in Ohio, which the Commission is required to do under Ohio law. In its originally filed summary, the Commission simply reported that there would be “no” such impact. For many of the reasons discussed below, JCARR decided that this statement was simply not complete and accurate.
The Commission has 90 days to re-file its fiscal analysis, at which point the rule would again come before JCARR—likely at its March 31, 2008 meeting.
What Does The Proposed Rule Provide?
If the Commission re-files the fiscal analysis, and if JCARR does not invalidate the rule, the following changes could become effective and Ohio employers should be prepared. The proposed rule currently provides:
Uniform Standard of 12 Weeks Maternity Leave - A ‘One Size Fits All’Approach
One of the most significant and heavily challenged provisions creates a presumption of discrimination against employers that provide less than 12 weeks of unpaid maternity leave to an employee when medically recommended, unless a lesser amount is justified by business necessity. This is a significant change from the previous, more flexible rule, which allowed employers and employees to work out “a reasonable period of time” for pregnancy leave. Following a pregnancy leave of absence, the employee has a right to reinstatement to the employee’s original position or to a position of like status and pay, without loss of service credits or other benefits.
While the Commission has indicated a willingness to work with companies that articulate a “business necessity” for shortening the proposed 12-week leave requirement, its rule fails to define what constitutes a “business necessity.” If left undefined, it could be a long and expensive journey through the court system for employers seeking clarity on this issue.
Certain Distinctions No Longer Legitimate
Not only are employees entitled to 12 weeks of leave when medically recommended, but they are entitled to the leave immediately upon hire, notwithstanding any policies requiring a certain length of service prior to eligibility for unpaid leave. Thus, an employer who prohibits all employees from taking any leave during their initial 90-day probationary period would have to make an exception for employees affected by pregnancy, childbirth or related medical conditions.
Indeed, under the proposed rule, an employee affected by pregnancy, childbirth or a related medical condition must be treated the same for all employment related purposes as other employees not so affected, “regardless of whether she is otherwise similarly situated in all respects.” Thus, for example, an employer, who only allows those employees who have completed six months of employment to use accrued paid sick leave, may have to permit a pregnant employee with only two months of employment to use accrued paid leave for pregnancy related conditions. Such a rule may eliminate the ability of employers to establish timelines for benefit eligibility and may diminish an employer’s ability to encourage longevity in the workforce.
Availability of Light-Duty Positions
Another unclear and potentially overly rigid provision of the rule pertains to the availability of light duty positions for pregnant employees. The Commission’s rule requires that employers make available light-duty positions and other similar benefits to pregnant employees under the same terms available to other employees similar in their ability or inability to work. Such a rule overlooks various considerations, such as safety concerns, that an employer may have to take into account when providing light duty positions for pregnant employees.
Additionally, if an employer currently only provides light duty positions for employees injured on the job – a common practice to assist Workers’ Compensation eligible employees to get back to work – the proposed rule requires the employer to treat pregnant employees more favorably than other employees with non-work related injuries or conditions by providing them light duty.
No Alteration of Job Duties
The new rule prohibits an employer from unilaterally limiting or altering the job duties of pregnant employees in absence of an objective and verifiable safety justification. Members of the business community have challenged this provision for failing to take into consideration employers who need to adjust job duties for reasons which are completely unrelated to pregnancy, such as the introduction of new and different equipment or systems, lay offs, or for reasons that may be favorable to a pregnant employee, such as for a promotion.
What Happens Next?
Various members of the business community are continuing to challenge the Commission’s authority to implement the above substantive rule, which many business groups believe goes beyond the scope of sex discrimination laws implemented by the Ohio legislature. Among other things, there are concerns about the economic impact the proposed rule could have on small employers, who, unlike larger employers, are not currently required to provide 12 weeks of unpaid leave and reinstatement under the Family and Medical Leave Act (“FMLA”) due to having fewer than 50 employees.
As noted, the Commission will have the opportunity to re-file its rule summary and fiscal analysis in 90 days, and if JCARR does not invalidate the rule at that point, it will become effective shortly thereafter. To be prepared, employers should begin looking at their current policies and practices and consider what changes they might need to make. We will continue to update our website (www.bricker.com) and issue client bulletins as new developments occur.