December 2007 No doubt in recent weeks you have read or heard about the changes proposed by the Ohio Civil Rights Commission (the “Commission”) to sections of the Ohio Administrative Code, which implements Ohio’s anti-discrimination laws. The changes, which were proposed earlier this year, concern pregnancy discrimination in the workplace.

On Dec. 3, 2007, the Joint Committee on Agency Rule Review (“JCARR”), which must approve the proposed Pregnancy Leave Rule, held a hearing; however, it did not address the validity of the rule, but instead sent the rule back to the Commission with instruction to provide a summary and analysis of the proposed rule’s anticipated financial impact on certain public employers in Ohio. The Commission has 90 days to re-file its fiscal analysis.

What Does The Proposed Rule Provide?

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.
  • Certain Distinctions No Longer Legitimate. Under the proposed rule, 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.
  • Availability of Light-Duty Positions. An 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. The proposed 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.
  • No Alteration of Job Duties. The new rule would also prohibit an employer from unilaterally limiting or altering the job duties of pregnant employees in the absence of an objective and verifiable safety justification. Employers 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, layoffs, or for reasons favorable to pregnant employees, such as for a promotion.

What Happens Next?

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, non-profit employers should begin looking at their current policies and practices and consider what changes they might need to make.