U.S. Government, Ohio Increase Protection For Active Duty Servicepersons and Their Families

February 6, 2008

Nearly five years ago, the United States military commenced operations in Iraq.  Recognizing the profound effect that the war has had on military families on the home front, Congress recently amended the Family & Medical Leave Act to expand the leave available to the family members of injured servicepersons.  The Ohio General Assembly also recently expanded the scope of the Ohio Civil Rights Act, making it illegal for employers to discriminate against an employee on the basis of “military status.”

FMLA Amendments:  Military Family Members May Take 26 Weeks

On January 28, 2008, President Bush signed the National Defense Authorization Act (NDAA) into law.  Among other things, the NDAA amended certain provisions of the Family & Medical Leave Act (FMLA) to permit military families additional leave to care for an serviceperson injured while on active duty.

As amended by the NDAA, the FMLA now allows a "spouse, son, daughter, parent, or next of kin" to take a total of 26 workweeks of leave to take care of "a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."  The legislation defines "serious injury or illness" as an "injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating."

The amendment also permits an employee to take FMLA leave for "any qualifying exigency…arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation." 

These amendments to the FMLA went into effect last week.  The Department of Labor has not yet issued regulations providing comprehensive guidance to employers regarding the application of these new provisions.  For the time being, employers should act in good faith in providing FMLA leave to military families.

Ohio Civil Rights Act:  “Military Status” Now a Protected Class

Over the past five years, thousands of Ohio citizens serving in the National Guard and other reserve units have been called up to active duty, forcing them to leave their everyday jobs with little warning.  The Ohio General Assembly recently enacted and Governor Strickland signed House Bill 372, adding “military status” to the classes of persons protected by the Ohio Civil Rights Act.

H.B. 372 prohibits discrimination on the basis of “military status.”  In other words, employers may not take adverse employment action or refuse to hire a candidate for employment due to their participation in active military duty, required reserve training, or any other aspect of military service.  This new legislation goes into effect on March 23, 2008.

If you require more information about the recent changes to the Family & Medical Leave Act or the Ohio Civil Rights Act and their potential impact on employers, please contact any of the attorneys in the Labor and Employment Department at Frost Brown Todd LLC.

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