In a significant decision affecting Ohio employers, the Ohio Civil Rights Commission recently voted to expand the protections afforded to pregnant women under Ohio's Fair Employment Practices Act. The changes would impact any Ohio employer with four or more employees. There are three major changes proposed by the Commission.
1. The most important substantive change is the amount of leave an employer would be required to give to a pregnant employee. The proposed regulations would require employers to give at least twelve weeks of leave for “pregnancy, childbirth, and related medical conditions.” Previously, employers were required to provide a “reasonable” period of time for pregnancy leave. As before, employers would still be required to reinstate the employee to her original position or a position of like status and pay upon return from the leave. In addition, if an employer takes any adverse employment action against the employee during the leave, the Commission will presume that the employer has discriminated against the employee.
This proposed regulation leaves several potential issues unanswered including:
- Will the twelve weeks provided under Ohio law be in addition to the twelve weeks guaranteed under the federal Family Medical Leave Act?
- Although it is possible for an employer to avoid the state twelve-week requirement if it can show a “business necessity,” how will this term be defined by the Commission
- The regulation makes it possible for the Commission to find discrimination even if an employer provides twelve weeks of leave to a pregnant employee. How will this be reconciled with federal law under FMLA?
2. The second significant change would require employers to treat a woman unable to work because of pregnancy, childbirth, or related medical conditions the same as any other employee who is unable to work for reasons other than pregnancy. For example, if an employer has a light duty program available to employees injured on the job, the employer would also have to offer the light duty program to female employees affected by pregnancy, childbirth, or a related medical condition. Critics argue that this change would require employers to extend the protections of workers' compensation claimants to pregnant employees or risk being liable for discrimination.
3. The third change would prohibit employers from placing an employee affected by pregnancy, childbirth, or a related medical condition on mandatory leave or otherwise limiting or altering her job duties. The only exception to this is an “objective, verifiable safety justification,” meaning the pregnancy or related medical condition does not allow the employee to perform her job functions safely.
The proposed amendments are not yet in effect and will be reviewed by the Joint Commission on Agency Rule Review (JCARR)—a body consisting of five state senators and five state representatives—after the Commission submits them for filing. If JCARR does not recommend to the legislature that it invalidate the proposed amendments by joint resolution, the rules would go into effect at a date set by the Commission and Ohio employers would have to comply with them. If all goes well for the Commission, the amendments could be effective as soon as forty days after it files them with JCARR.
Already interested parties are vowing to lobby the legislature to invalidate the amendments, arguing that the Commission is usurping the role of the General Assembly by enacting substantive law and acting outside of its authority granted by the legislature to “adopt, promulgate, amend, and rescind rules” to effectuate the provisions of the Fair Employment Practices Act. It remains to be seen whether the proposed rules will become law.