Employers Can Oppose The Ohio Civil Rights Commission’s New Pregnancy Discrimination Regulations

November 1, 2007

The Ohio Civil Rights Commission is one step closer to enforcing its new pregnancy discrimination regulations.  As we reported in our August 3, 2007 Client Advisory (reproduced below), the new regulations require that employers provide 12 weeks of leave for employees affected by pregnancy, and further require that any light duty program maintained by the employer be available to pregnant employees as well. 

Paying attention to only a part of the objections voiced by employer groups, the OCRC voted 4 to 1 late last week to adopt a slightly modified version of the rules that would require 12 weeks of “paid or unpaid” leave only when "medically recommended."  In response to an observation that the new regulations give pregnant women preferential treatment not found in the Ohio Civil Rights Act, OCRC Chairwoman Barbara Sykes was quoted by the Columbus Dispatch as saying that "the preferential treatment goes to the men because they don't have to deal with the swelling and the bloating and the aches and the pains and the disfigurement of the body."  Sykes is not a lawyer.

The rules now must be considered by a legislative committee called the Joint Commission on Agency Rule Review ("JCARR").  Once the OCRC re-files the proposed regulations, JCARR has 30 days to review the rules before they become effective.  Until a final version is filed, it is impossible to predict when the rules could be effective. 

If  JCARR concludes that the rules are not consistent with Ohio law, it can recommend that the Ohio legislature revoke them.  JCARR should recommend revocation if it determines that (1) the rules conflict with the intent of the legislature as expressed in the Ohio Civil Rights Act, (2) the rules exceed the scope of the OCRC's rule-making authority, or (3) the OCRC failed to prepare a complete and accurate "fiscal analysis" of the proposed rule.  Thus, Ohio employers have another opportunity to oppose these rules before they become effective.

When it initially filed its proposed rules, the OCRC’s fiscal analysis estimated that compliance would cost Ohio employers nothing.  However, requiring 12 weeks of leave to avoid a presumption of pregnancy discrimination increases replacement costs for those employers who currently offer less pregnancy/maternity leave.  In addition, the new rules make it more expensive for employers to control workers' compensation costs.  Many employers now make special light duty assignments available only to those who are limited by work-related injuries.  Under the new regulations, such leave practices would be unlawful unless they were expanded to include employees who were limited by pregnancy-related conditions.  This would make fewer light-duty opportunities available for those limited by on-the-job injuries, or require more "make work" assignments.  Finally, unless the Ohio Supreme Court reverses its Coolidge decision (arguably requiring employers to hold open jobs indefinitely for those on workers’ compensation temporary total disability), the new regulations likely will be argued to require that pregnant employees receive the same indefinite job protection rights.  This obviously further increases employers’ costs.

Employers interested in opposing the OCRC regulations can contact one or more of the following legislators who are members of JCARR:

Website:  http://www.jcarr.state.oh.us

(Reproduction)

 

August 3, 2007

Ohio Civil Rights Commission Hears Testimony On Its Proposed Changes toOhio’s Pregnancy Discrimination Regulation

Earlier this week, the Ohio Civil Rights Commission (OCRC) held a public hearing concerning its proposed amendment to Ohio’s pregnancy anti-discrimination regulation, O.A.C. § 4112-5-05(G).  On behalf of the Ohio Management Lawyers Association, George Yund, Member of Frost Brown Todd, appeared at the hearing to oppose the amendments to the regulation.

The proposed regulation expands the anti-discrimination statute.  If the proposed regulation is adopted, the most significant changes would include: 

  1. Employers could no longer limit participation in their light-duty programs (or any other benefits that are provided to employees based on their inability to work) to employees who have been injured on the job.  If employers have a light-duty program, it would have to be available on the same terms to employees “affected by pregnancy, childbirth, or a related medical condition.”
  2. Any policy providing less than 12 weeks of pregnancy, childbirth, or maternity leave would be deemed to constitute unlawful sex discrimination unless justified by business necessity.  In other words, all employers in Ohio, including small employers who are not subject to the provisions of the Family and Medical Leave Act (FMLA), would be required to allow employees to take 12 weeks of maternity leave, unless the employer could demonstrate a business necessity for not following this requirement.
  3. Employers would be required to reinstate any female employee whose ability to work was affected by her pregnancy or related medical condition to her original position or to a position of like status and pay once she signifies an intent to return to work.

From this point, the proposed regulation will be reviewed by the Joint Committee on Agency Rule Review to ensure that the proposed changes do not exceed the OCRC’s rulemaking authority or conflict with existing law or legislative intent.  If approved, the proposed regulation could take effect as early as September.

If you have questions or would like additional information regarding the subject of this advisory, please feel free to contact any attorney in the Labor and Employment Department at Frost Brown Todd.

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