Tuesday, July 31, 2007

The more things change the more they stay the same

According to today's Columbus Dispatch, the Ohio Civil Rights Commission is considering adopting new regulations under which pregnant employees would be entitled to 12 weeks of unpaid maternity leave immediately upon their date of hire. These new rules would apply to any employer with 4 or more employees, as opposed to the federal FMLA's 50-employee limit. Finally, these new state rules would require employers to offer a pregnant employee a light-duty assignment where practical and to reinstate a worker to her former position or an equivalent post when she returns to work. Before any changes can take effect, they must be approved by the Joint Committee on Agency Rule Review, a legislative panel. If the panel approves the changes, they could take effect in September. A copy of the proposed regulations, which amends OAC 4112-5-05(G), are available from the OCRC here, and redlined here.

It is unclear why the OCRC feels these new rules are necessary. It is true that the FMLA only applies to companies with 50 or more employees and to employees with at least one year of employment who have worked a minimum 1,250 hours in the previous 12 months. As this May 22, 2007, post makes clear, Ohio law already requires at least 12 weeks of maternity leave for all pregnant employees. Further, the federal Pregnancy Discrimination Act and its Ohio counterpart already require that employers treat pregnant employees the same as other employees with similarly disabling medical conditions. In other words, if a pregnant employee requests light duty to accommodate pregnancy symptoms, the company must treat that employee's request the same as it would any other similarly disabled employee's request. Similarly, an employer that terminates a pregnant employee during maternity leave does so at its own peril regardless of whether she is FMLA-eligible or not. Such disparate treatment is pregnancy discrimination under current laws.

These proposed new rules do nothing more than codify the status quo. They seem to simply jump on the "family responsibility discrimination" bandwagon. If any good is to come from of these new rules it is that employers will be further educated about maternity leave rights of Ohio employees, which will still remain a minefield for the unwary HR professional. These new rules, however, are not groundbreaking, and should not cause any change in the law or how companies administer maternity leaves.