The Ohio legislature recently enacted the Ohio Family Military Leave Act (the “Act”) that requires certain Ohio employers to provide unpaid leave to eligible employees who are the parent, spouse or legal custodian of a member of the uniformed services under certain conditions. The new law went into effect on July 2, 2010 and applies to Ohio employers (public and private) who have 50 or more employees. The following is a brief overview of the new law:
Summary of New Law
Eligibility. To be eligible for leave, an employee must have been employed by the employer for at least 12 consecutive months and for at least 1,250 hours in the 12 months immediately preceding commencement of the leave.
Reason for and Amount of Leave. Eligible employees may take up to 10 days (or 80 hours, whichever is less) of leave per calendar year if their spouse, child, current legal ward or former legal ward is either: (a) called into active duty in the unformed services for more than 30 days; or (b) is injured, wounded, or hospitalized while serving on active duty.
Notice. An employee seeking leave under the Act must provide his/her employer with notice of the leave at least 14 days in advance, if the leave is because of a service member’s call to active duty, or 2 days in advance, if the leave is because of an injury. If the service member’s injury is critical or life-threatening, however, no notice is required.
Timing. The dates on which the employee takes leave must occur no more than 2 weeks before or 1 week after the deployment date of the employee’s spouse, child, or ward or former ward1.
Unavailability of Other Leave. To take leave under the Act, the employee must have exhausted all other available leave, except sick or disability leave. This requirement appears to suggest that leave under the Act cannot run concurrently with the employee’s leave under similar provisions of the federal Family Medical Leave Act (“FMLA”), where applicable. In other words, an employee could be eligible to take up to 10 days of leave under the Ohio law in addition to his/her 26-week leave entitlement for family military service-related “qualifying exigencies” under the FMLA.
Pay and Benefits. Although leave under the Act is unpaid, employers must continue to provide benefits to the employee during the leave period.
Job Restoration. Upon completion of the leave period, the employer must restore the employee to the position held prior to taking leave or a position with equivalent seniority, benefits, pay and other terms and conditions.
Certification. Employers are permitted to require employees seeking leave to provide certification from an appropriate military authority to verify that the employee satisfies the requisite criteria under the Act.
No Discrimination/Retaliation. Employers are prohibited from discharging, disciplining or otherwise discriminating against employees because of their actual, or potential, exercise of rights under the Act. This non-discrimination/non-retaliation prohibition similarly applies with respect to employees who offer “support” for another employee’s exercise of his/her rights under the Act.
Comparison To FMLA
As referenced above, the Act’s requirements share some similarities with the family military leave provisions of the FMLA; however, it is unclear at this time how the two laws will interact in practice.
There are also considerable differences between the two laws, which may cause confusion for employers attempting to respond to employees’ requests for family military leave. For example, where the FMLA applies only to worksites with 50 or more employees working within a 75-mile radius, the Ohio law covers all Ohio employers with 50 or more employees, regardless of the number of employees at any particular worksite.
Additionally, the Ohio law broadly allows for leave when a covered family member is deployed for uniformed service for more than 30 days; however, the FMLA limits such leave to situations where there is a “qualifying exigency” resulting from the family member’s service. The amount of available leave, notice and certification requirements and timing limitations (or lack thereof) also differ between the two laws.
Covered employers would be wise to review, and revise as needed, their existing leave policies and practices to comply with the new Ohio Family Military Leave Act. Employers should also ensure that appropriate managers, supervisors and human resource personnel are properly trained regarding the new law’s requirements.