Ohio's new Military Family Leave Act becomes effective today at Ohio Revised Code § 5906.01 et seq. It applies to employers, defined as "a person who employs fifty or more employees" and includes the state, and other political entities, schools, townships, counties, etc. In other words, it covers not just employers already subject to the FMLA, but also all other employers who have 50 employees – regardless of whether those employees are located at a worksite within a 75 mile radius.
Under the Act, employers must provide employees with unpaid " leave up to ten days or eighty hours, whichever is less," once per calendar year when:
- The employee has worked at least 1250 hours in the preceding twelve months and has worked for the employer for at least 12 consecutive months. (Unlike the FMLA, the employee needs to work for 12 consecutive months instead of any twelve months strung together over a number of years).
- The employee is the parent, spouse, or person who has had legal custody of a person
- who is a member of the uniformed services and
- who is called to "active duty" in the uniformed services for a period longer than 30 days OR is injured, wounded, or hospitalized while serving on active duty in the uniformed services.
Active duty means full-time duty in the active federal military services or pursuant to an executive order of the U.S. President, an act of Congress or proclamation of the governor. It does NOT include active duty for training, initial active duty for training, or the period of time for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any duty unless such period is contemporaneous with an active duty period.
- who is a member of the uniformed services and
- The employee gives the required advance notice:
- When the employee is taking leave because of a call to active duty, the employee must give at least 14 days advance notice to the employer that the employee intends to take leave under this Act;
- When the employee is taking leave because of an injury, wound or hospitalization, the employee must give the employer at least 2 days advance notice;
- No notice must be given to an employer if the employee receives notice from a representative of the uniformed service that the injury, would, or hospitalization is of a critical or life-threatening nature.
- When the employee is taking leave because of a call to active duty, the employee must give at least 14 days advance notice to the employer that the employee intends to take leave under this Act;
- The leave takes place no more than two weeks prior to or one week after the deployment date of the employee's spouse, child or ward or former ward. (I would have to assume that leave for an injured family member is not subject to this requirement).
- The employee does not have any other leave available to use (other than sick or disability leave).
Employers may require the employee requesting leave to provide certification from the appropriate military authority to verify that the employee satisfies the above criteria.
Covered employers are required to continue providing benefits to the employee during the leave of absence, but the employee shall be responsible for the same proportion of the cost of the benefits as the employee regularly pays during non-leave periods. Employers are also required to restore the employee to the position the employee held before taking that leave with equivalent seniority, benefits, pay and other terms and conditions of employment. Employers are also prohibited from discharging, fining, suspending, expelling, disciplining or discriminating against an employee regarding any term or condition of employment because of the employee's actual or potential exercise (or support for another employee's exercise) of any right under this Act. Nonetheless, employers are not otherwise prevented from taking employment action that is independent of the employee's exercise of rights under this Act.
Employees may not be required to waive their rights under this Act.
No collective bargaining agreements or benefit plans may be executed after today which limit or require an employee to waive his or her rights under this Act. However, employer must still comply with any collective bargaining agreement or benefit plan which provides leave benefits similar to those established by this Act which are greater than the leave rights provided by this Act. Indeed, an employer may provide better leave benefits than are required by this Act.
Finally, employers may be subject to a civil action for injunctive "or any other" relief that a court finds necessary to secure an employee's rights under this Act. I hear a public policy tort action coming . . . . . .
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. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
