The Ohio Civil Rights Commission approved new maternity leave regulations requiring employers to give pregnant employees up to 12 weeks paid or unpaid maternity leave. In a 4-1 vote, the Commission approved the regulations that, some say, grant pregnant women preferential treatment in the workplace.

The Commission’s new regulations go far beyond current federal law. Under the federal Family and Medical Leave Act (FMLA), employers are required to grant employees 12 weeks leave only if the employer has over 50 employees and only if the employee worked at least 1,250 hours in the last year. The new Commission regulations, by contrast, apply to all employers with four or more employees, and pregnant employees would be entitled to leave as of their first day of work.

Moreover, the regulations are ambiguous as to whether the required maternity leave may be in addition to FMLA leave. For example, if an employee takes off 12 weeks of leave to care for a sick family member under the FMLA, she could still later be entitled to take an additional 12 weeks for maternity leave. Although the wording of the regulations is ambiguous on this point, the Commission has publicly stated it is their intent to allow this type of leave “stacking.” Employers may seek an exemption from the 12-week rule but only if they can prove the exemption is a business necessity.

The Commission regulations also grant pregnant workers new rights to light-duty work. If an employer provides light-duty work to other workers, even if such work historically has been provided only to those injured on the job, the employer must also provide light-duty work to pregnant workers.

The Commission regulations will likely face challenge because they arguably overstep the Commission’s authority under Ohio law. By state law, women affected by pregnancy and childbirth must be treated the same for all employment-related purposes as other persons similar in their inability to work. Small business and other employer advocacy groups argue that regulations that guarantee 12 weeks of maternity leave go far beyond equal treatment and are arguably more favorable for pregnant workers.

The Commission regulations still must be approved by the Joint Committee on Agency Rule Review, which will consider whether the Commission has overstepped its authority. This meeting will likely take place sometime in December. If approved, the regulations will take effect 30 days after such approval, and Ohio will join 18 states and the District of Columbia in requiring private employers to provide jobprotected pregnancy leave.