The Ohio Civil Rights Commission (“OCRC”) has recently approved changes in the Ohio pregnancy anti-discrimination regulations which would require Ohio employers to provide all female employees with a minimum of 12 weeks leave for “pregnancy, childbirth, and related medical reasons.” Failure to provide the leave is presumed under the new regulations to constitute unlawful sex discrimination “unless justified by business necessity.” The proposed regulations greatly expand the availability of leave for pregnant employees beyond that provided by the FMLA. First, the Ohio rule would apply to any company employing four or more employees in Ohio while the FMLA applies to companies employing 50 or more employees. Second, a pregnant employee would be eligible for leave on day one of her employment as the Ohio regulations, unlike the FMLA (with its one year and 1250 hour eligibility requirements), has no eligibility requirements. Notably, the regulations provide for no leave for fathers.

The regulations would further require Ohio employers to provide light-duty work opportunities to any employee “affected by pregnancy, childbirth, or a related medical condition” if light-duty opportunities are provided to any other employees. Many employers utilize light-duty programs to reduce workers’ compensation cost by returning injured on the job employees to work and limit participation in the light-duty programs to employees injured on the job. If the proposed regulations become effective, employers will be faced with either the cost of expanding their light-duty programs to pregnant employees or dropping the programs all together and losing the cost-savings under their workers’ compensation programs.


Remaining Legislative Process Before Regulations Become Effective

The proposed regulations are not effective until the Ohio administrative rule-making procedure is completed. The OCRC will need to file the proposed regulations with the Joint Committee on Agency Rule Review (JCARR). JCARR may recommend that the General Assembly invalidate the regulations if JCARR determines that the regulations exceed the scope of the OCRC’s statutory authority or conflict with the intent of the Ohio legislature in enacting the Ohio Civil Rights Act. Notably, the Ohio Chamber of Commerce took the position in testimony at the OCRC’s August 1 hearing that the regulations exceed the OCRC’s rule-making authority for two reasons. First, the Ohio Civil Rights Act which the regulations purport to interpret prohibits discrimination against pregnant employees, but the regulations go much beyond this. Instead, the proposed regulations require employers to treat pregnant employees more favorably than similarly situated employees in terms of light duty opportunities and required amount of leave. Second, Ohio courts interpreting the Ohio Civil Rights Act pregnancy discrimination prohibitions routinely look to federal cases interpreting the Pregnancy Discrimination Act for guidance and the Sixth Circuit has found that a pregnancy-blind policy which denies light duty opportunities to all employees not-injured on the job does not discriminate against pregnant employees. Reeves v. Swift Transportation Company, 446 F.3d 637, 640 (2006).


Depending upon when the OCRC files the proposed rules, JCARR would likely review the proposed regulations at their November 13 or December 3 meeting. If JCARR recommends that the regulations be invalidated, the General Assembly must invalidate the rule by concurrent resolution within the 30 day period beginning when the OCRC files the proposed rule. If the proposed regulations are not invalidated through this process, the regulations can become effective ten days after the Ohio Civil Rights Commission files the final rules.

If you would like to express your opinion regarding whether JCARR should recommend that the proposed regulations be invalidated, please click here (www.jcarr.state.oh.us) for a list of the state legislators on the JCARR committee. If you would like more information regarding compliance with pregnancy-discrimination law, contact the Taft attorney with whom you regularly work or the authors of this article.