Earlier in 2007, the Ohio Civil Rights Commission proposed a new administrative rule, which would require Ohio employers of 4 or more employees to grant 12 weeks of pregnancy leave to their pregnant employees when medically recommended.

Before the proposed rule could become effective, however, the Joint Committee on Agency Rule Review had to consider and not invalidate the rule. JCARR is a panel comprised of 10 members of the Ohio legislature charged with deciding whether or not the proposed changes comport with the Commission’s rulemaking authority and existing law.

JCARR held a hearing on December 3, 2007. JCARR did not address the validity of the rule, but instead sent the rule back to the Commission with instruction to provide a complete and accurate summary and analysis of the proposed rule’s anticipated financial impact on certain public employers in Ohio. By doing so, JCARR rejected the Commission’s “no impact” analysis. The Commission has 90 days to re-file its fiscal analysis, at which point the rule would again come before JCARR—likely at its March 31, 2008 meeting.

If the Commission re-files the fiscal analysis, and if JCARR does not invalidate the rule, the following changes could become effective and Ohio employers should be prepared. The proposed rule:

  • creates a presumption of discrimination against employers that provide less than 12 weeks of unpaid, job protected maternity leave to an employee when medically recommended, unless a lesser amount is justified by business necessity. This is a significant change from the previous, more flexible rule, which allowed employers and employees to work out “a reasonable period of time” for pregnancy leave. The proposed rule fails to define what constitutes a “business necessity.”
  • provides leave immediately upon hire, notwithstanding any employer policies requiring a certain length of service prior to eligibility for unpaid leave.
  • requires that an employee affected by pregnancy, childbirth or a related medical condition be treated the same for all employment related purposes as other employees not so affected, “regardless of whether she is otherwise similarly situated in all respects.” Thus, for example, an employer, who only allows those employees who have completed six months of employment to use accrued paid sick leave, may have to permit a pregnant employee with only 2 months of employment to use accrued paid leave for pregnancy-related conditions.
  • requires that employers make available light-duty positions to pregnant employees under the same terms available to other employees similar in their ability or inability to work. If an employer currently only provides light-duty positions for employees injured on the job, the proposed rule requires the employer to treat pregnant employees more favorably than other employees with non-work related injuries or conditions by providing the pregnant employee light-duty.
  • prohibits an employer from unilaterally limiting or altering the job duties of pregnant employees in the absence of an objective and verifiable safety justification. This provision fails 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, lay offs, or for reasons that may be favorable to a pregnant employee, such as for a promotion.

Various members of the business community are continuing to challenge the Commission’s authority to implement the above substantive rule, which many business groups believe goes beyond the scope of sex discrimination laws implemented by the Ohio legislature.