Ohio Civil Rights Commission Expands Maternity Leave Benefits Beyond Those Required by Federal Law.
On Thursday, October 25, 2007, the Ohio Civil Rights Commission (OCRC) approved an amendment to Ohio Administrative Code § 4112-5-05 governing sex discrimination which will affect all employers (of four or more employees) who interview, hire or employ pregnant employees. The regulatory amendment must still be approved by the Joint Commission on Agency Rule Review and will then take affect in 30 days. If approved, the amendment will have a significant impact on employment policies governing maternity leave and other benefits given to employees:
- Pregnant employees are entitled to light duty positions, other modified work programs and receipt of fringe benefits to the same extent as non-pregnant employees who are similar in their ability to work regardless of any distinctions or qualifications currently made in the employer’s policies regarding length of service, nature of the medical condition or whether the medical conditions is related to an on-the-job injury. In other words, if certain benefits and light duty job assignments are only available to employees who were injured on the job (so that they could not received income replacement from a workers’ compensation injury) or only to employees who have been employed for at least, for example, six months, those same benefits must be made available to an “employee affected by pregnancy, childbirth or related medical condition” regardless of whether the pregnant employee was injured on the job or had only been employed one day. On the other hand, if the employer does not offer light duty or modified work assignments to any employees, pregnant employees will not be entitled to them either.
- Employment policies which provide for “less than twelve weeks of pregnancy, childbirth or maternity leave . . . shall be presumed to have a disparate impact on women and constitute unlawful sex discrimination unless justified by business necessity (when “an adverse employment action is taken against an employee who is temporarily limited, in part or in whole, in her ability to work due to pregnancy, childbirth or a related medical condition”).
- “No employer shall be permitted to place an employee affected by pregnancy, childbirth or a related medical condition on mandatory leave, or otherwise limit or alter her job duties, in the absence of an objective, verifiable safety justification and only when the pregnancy or related medical condition interferes with her ability to safely perform her position.”
The OCRC current regulation requires only a leave of absence for a “reasonable period of time” and subjected the leave to the same minimum length of service requirements as required of non-pregnant employees who were eligible for medical leaves of absence. Even if employers did not have a medical leave of absence policy, they are still required under the current regulations to provide a reasonable period of time for maternity leave.
Under federal non-discrimination law, employers are only required to treat pregnant employees the same as other employees who are similarly limited in their ability to work. Therefore, if the employer did not offer any medical or sick leave, pregnant employees were not entitled to any medical leave.
Under the FMLA, pregnant employees are entitled to twelve weeks of medical leave, but only to the extent that they qualify, have not otherwise exhausted their twelve-week entitlement in that calendar year, and, coodinate parental leave with a spouse who works for the same employer. The new OCRC regulation is silent about whether an employer must provide the twelve weeks of pregnancy leave without regard to the non-maternity leaves provided under the FMLA or how many weeks of maternity leave the employee has already taken in any twelve month period.
To view the redline version of the amendment, please click here.
Unemployment Compensation Denied to Able-Bodied Pregnant Employee Forced to Take Maternity Leave by CBA.
On October 11, 2007, the Cuyahoga County Court of Appeals affirmed the denial of unemployment compensation to a pregnant airline attendant who was forcibly laid off following her 27th week of pregnancy (despite her doctor’s certification that she was able to work) pursuant to the terms of a collective bargaining agreement (which the employer argued was required by FAA regulations). Continental Airlines, Inc. v. Ohio Dept. of Job & Family Servs., 2007-Ohio-5434. The court held that the CBA constituted a common law exception to the prohibition in Ohio Revised Code § 4141.29 against waivers of unemployment compensation. “The Unemployment Compensation Act is not intended for individuals who voluntarily agree to a period of partial unemployment, particularly when the individuals continue to accrue seniority, remain covered under the employer's insurance program, remain eligible for sick pay, and are able to return to their former job as soon as they are able." The court also noted that “the terms of the collective bargaining agreement, mutually negotiated at arms-length by [the claimant’s] union and Continental compel our conclusion that [the claimant] was voluntarily unemployed.”
The court followed a pre-Pregnancy Discrimination Act common pleas case from 1963, Leach v. Columbus Plastics Products, Inc., where the Franklin County Court of Common Pleas held that: "An employee on leave of absence for pregnancy, during a period that such leave is mandatory under rules established pursuant to a collective bargaining agreement, is not entitled to unemployment compensation benefits since she is not `available for suitable work' as required by division (A)(4) of Section 4141.29, Revised Code."
“The overarching analysis of Ohio unemployment compensation law as it relates to this case must determine whether [the claimant] is the type of temporarily unemployed worker to whom the law contemplates providing unemployment benefits. Our analysis concludes that she is not. As a union represented worker, [the claimant] is a party to the collective bargaining agreement. As such, she agreed to stop flying after her 27th week of pregnancy in exchange for the accrual of seniority while on maternity leave, continued coverage under Continental's health insurance plan for the duration of the leave, the option of using sick time during the maternity leave, and full reinstatement at the end of maternity leave. In addition, the collective bargaining agreement gave [the claimant] a one-time option to extend maternity leave for up to 12 months. These contract terms were reached as a result of arms-length negotiations between Continental and [the claimant’s] union, so [the claimant] validly waived the right to unemployment compensation benefits.”
While the court questioned the legality and discriminatory nature of the mandatory maternity leave provision in the CBA, it refused to alter its analysis of the unemployment statute. Its analysis is consistent with a 1987 Supreme Court decision upholding the denial of unemployment compensation to a Missouri woman who was refused reinstatement to her job following a maternity leave under a similar unemployment statute which provided that unemployment compensation is not available to an employee who "has left his work voluntarily without good cause attributable to his work or to his employer." Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511. While federal law at that time precluded the denial of unemployment compensation “solely” on the basis of pregnancy, this did not require preferential treatment for pregnancy when the state law provided that all persons who leave their jobs are disqualified from receiving benefits unless they leave for reasons directly attributable to the work or to the employer.
Insomiacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/8/2007/2007-ohio-5434.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.
