With little publicity, Ohio's Military Family Leave Act ("OMFLA") took effect on July 2, 2010. The OMFLA requires all employers, public and private, with 50 or more employees, to provide unpaid military family leave to their eligible employees. Unfortunately, it is not a mirror-image of the FMLA's "covered servicemember" and "qualifying exigency" family military leave provisions. There are differences.
The OMFLA, codified at Ohio Revised Code Chapter 5906, contains the following provisions:
- The eligible employee must be employed for at least 12 consecutive months and at least 1,250 hours in the 12 months immediately preceding the start of the leave.
- The eligible employee must be the parent, spouse, or legal (current or former) custodian of a uniformed services member who is called into active duty (as defined in the Act) for a period greater than 30 days or is "injured, wounded, or hospitalized" while serving on active duty.
- Once each calendar year, an eligible employee can take (the lesser of) up to 10 work days or 80 work hours.
- The eligible employee must provide at least 14 days' notice prior to taking the leave if the leave is taken due to a call to active duty. At least two days' notice must be provided if the leave is taken due to an injury, wound, or hospitalization. If the covered family member's situation is critical or life threatening, the notice requirement is waived.
- The eligible employee can take leave no more than two weeks prior to, or one week after, the covered family member's deployment date.
- The eligible employee must exhaust all other available leave, except sick leave or disability leave. This provision already has generated some controversy. Based on the Act's text and legislative history, OMFLA and FMLA leave arguably cannot run concurrently. Rather, OMFLA leave only would be granted when the employee has exhausted, or is ineligible for, FMLA leave.
- The employer must continue providing benefits (other than salary or wages) to the eligible employee while on leave. The eligible employee is responsible for his share of any applicable benefit costs.
- After the leave, the eligible employee must be restored to her position (or one with equivalent seniority, benefits, pay, or other terms and conditions).
- The employer may require certification from the appropriate military authority to verify the employee meets the OMFLA criteria.
- The employer cannot interfere with an eligible employee's OMFLA rights and cannot retaliate against an employee's "actual or potential exercise, or support for another employee's exercise" of OMFLA rights. The employer, however, can take disciplinary action unrelated to the OMFLA leave.
- The eligible employee cannot be required to waive his OMFLA rights. After July 2, 2010, an employer cannot enter into a union contract or employee benefit plan that limits or requires waiver of an employee's OMFLA rights.
There are subtle and not-so-subtle differences between the OMFLA and the FMLA. An employee may be ineligible under the FMLA but eligible under the OMFLA. Accordingly, Ohio employers should become familiar with differences under these Acts and separately analyze an employee's eligibility for family military leave under the OMFLA and the FMLA.