On October 25, 2007, the Ohio Civil Rights Commission, by a 4-1 vote, revised Ohio Administrative Code Chapter 4112-5-05(G), replacing a "reasonable period of time" maternity leave requirement with a mandated twelve-week time frame. Ohio employers with four or more workers have to provide female employees twelve (12) weeks of unpaid maternity leave, with guaranteed job reinstatement, under this revised rule.
Failure to provide twelve weeks of leave to pregnant employees would be "presumed to have a disparate impact on women and constitute unlawful sex discrimination unless justified by a business necessity." Revised O.A.C. 4112-5-05(G)(4). The revised code further requires that a pregnant employee be treated the same as other employees who are similarly situated solely in their ability or inability to work. Whether a pregnant employee is also similarly situated in all other material respects would be irrelevant.
The current version the rule, adopted in 1977, requires that employers provide pregnancy leave “for a reasonable period of time,” makes it illegal to terminate a female employee under a policy providing “insufficient” or no pregnancy leave, and requires that pregnant employees be returned to their original or similar job upon signifying their intent to return to work within a “reasonable time.” The proposed revision to this rule removes any ambiguity by changing “reasonable period” to a mandatory 12 weeks. Ohio joins numerous other states that require more generous maternity leave benefits than provided in federal mandates, by adopting this revised language.
Business interests have challenged the revision to O.A.C. 4112-5-05(G) since it was proposed on June 21, 2007, by the Ohio Civil Rights Commission, protesting that this mandatory twelve week leave will place an undue burden on employers, particularly small companies, particularly at this time when Ohio's economy is struggling. The business community further contest that the code as revised creates a "super-protected" class of women of reproductive age. The Ohio Chamber of Commerce released a statement indicating that it will challenge the revised policy when it goes before the Joint Committee on Agency Rule Review (JCARR) later this year.
JCARR has thirty (30) days from the filing of the rule by the commission to act or else the rule takes effect eleven (11) days later, i.e. forty-one (41) days from filing. If at least six members of the committee vote to invalidate the change, that decision would have to be approved by a majority vote in both chambers of the Ohio General Assembly.
Text of the revised rule can be viewed online at the OCRC's website at http://crc.ohio.gov/pdf/PregnancyRule06212007.pdf.