June 30, 2010 Labor & Employment Bulletin PRESSING EMPLOYMENT POLICY CONCERNS — LEAVE LA W UPDATE Employers should take note of three reasonable leave (generally regarded as termination of employment of an important events that could affect their 12 weeks) regardless of the minimum employee who is temporarily disabled leave of absence policies. Two of the length of service requirements contained due to pregnancy or related condition is events occurred last week, and one takes in their employers’ leave policies. During caused by an employment policy under effect this week. On June 22, 2010, that time, the OCRC successfully argued which insufficient or no maternity leave the Ohio Supreme Court held that in lower courts that an employer’s is available, such termination shall employers can enforce minimum length enforcing a minimum length of service constitute unlawful sex discrimination.” of service requirements on pregnant requirement on employees desiring leave In reversing the court of appeals, the employees. The next day, the U.S. because of their pregnancy was direct Supreme Court held that the employer Department of Labor (“DOL”) expanded evidence of sex discrimination. However, provided sufficient leave for pregnancy its interpretation of the term “son or in McFee v. Nursing Care Management , and related conditions, but McFee was daughter” for purposes of the federal the Ohio Supreme Court rejected the ineligible for the leave because she failed Family and Medical Leave Act OCRC position, holding that an to meet the policy’s minimum length (“FMLA”), significantly expanding the employer’s leave policy that includes of service requirements. The Court number of employees who may be able mandatory length of service requirements found that minimum length of service to take FMLA leave for a child’s serious with no exception for pregnancy or requirements, when applied in a uniform health condition. Finally, Ohio’s new related medical conditions is not direct and pregnancy-neutral manner, did not military leave law will become effective evidence of sex discrimination. constitute direct evidence of sex July 2. That law will provide many Ohio Eight months into her employment, discrimination under Ohio law because employees leave similar to what they can Tiffany McFee presented her employer they do not discriminate against women receive for qualifying military exigencies with a doctor’s note indicating that she on account of their pregnancy or related under the FMLA. could not work due to a condition conditions. related to her pregnancy. Although This case is an important victory for Ohio Supreme Court Rules that she was ineligible for leave under the Pregnant Employees Who employers. Although employers may now employer’s FMLA policy because she carefully impose minimum length of Fail to Meet Minimum Service had not yet completed a year of service, Requirements Are Not service requirements on pregnant McFee did not come to work, and her employees seeking medical leave, Entitled to Leave employer terminated her employment. employers must treat pregnant and non- The Ohio Civil Rights Act prohibits McFee filed a lawsuit against her pregnant employees alike. In addition, employers from taking adverse employer claiming that her employer’s employers—even small employers who employment actions against employees enforcement of the leave policy was are not covered under the FMLA—must based on, among other classifications, direct evidence of unlawful sex continue to keep in mind the prohibition their sex. In particular, the Act requires discrimination. The trial court agreed against the termination of an employee that employers treat pregnant and non- with the employer’s position that its taking leave for pregnancy or related pregnant employees equally. For years, FMLA policy was not discriminatory. conditions when insufficient or no the Ohio Civil Rights Commission The court of appeals reversed, relying maternity leave is available. (“OCRC”) had taken the position on the following OCRC rule: “[w]here that pregnant women were entitled to
LABOR & EMPLOYMENT Bulletin June 30, 2010 • The employee does not have any other DOL Expands Interpretation of Ohio Military Leave Law leave available for use, except sick “Son or Daughter” Sub. House Bill 48 (“H.B. 48” or the leave or disability leave. The DOL’s new interpretation of “son “Bill”), effective July 2, 2010, requires or daughter” expands the parent-child Ohio employers with fifty or more Like the FMLA, the Bill provides unpaid relationship for purposes of the FMLA employees to provide unpaid leave up to leave, job restoration benefits, and more broadly than the traditional ten days or eighty hours, whichever is prohibits retaliation for taking leave. biological or adoptive sense. Now, a less, to parents, legal guardians, and However, unlike the FMLA, H.B. 48 “son or daughter” relationship can be spouses of soldiers who are wounded or does not limit its definition of “eligible established in loco parentis , “where the called into active duty. Although many employee” to those employees who employee intends to assume the Ohio employers with fifty or more work at worksites with “fifty or more responsibilities of a parent with regard to employees are already required to provide employees working within seventy-five a child.” According to the DOL , “[e]ither FMLA benefits (including leave) to miles of the worksite.” Employees who day-to-day care or financial support may employees whose family members have a are not “eligible” for FMLA benefits establish an in loco parentis relationship,” “qualifying exigency” related to military solely due to the seventy-five mile radius cautioning that “[i]n all cases, whether service, the Bill will provide benefits to limitation will now be covered under an employee stands in loco parentis to a some additional employees. Moreover, the Bill. child will depend on the particular facts.” although the Bill’s sponsor takes the H.B. 48 is unclear regarding whether it is According to the DOL’s press release, position that the leave under H.B. 48 intended to provide supplemental leave even when a child has a biological runs concurrently with FMLA leave, the in addition to that already provided parent in the home, a non-biological language of the Bill leaves open the under the FMLA, or whether the leave parent may still share a “son or daughter” possible interpretation that the new provided for under H.B. 48 is to run relationship with him or her in loco military leave entitlement is an concurrently with existing FMLA parentis , for the purpose of taking additional benefit separate and apart military leave. Under the Bill, Ohio FMLA leave. from FMLA leave and available to employees are entitled to ten days or employees who previously exhausted Under the DOL’s new interpretation, eighty hours of unpaid leave to care for their FMLA leave benefit. employees who might otherwise not have an injured soldier if the employee “does been eligible for leave due to a family H.B. 48 requires employers to permit not have any other leave available for member’s “serious health condition” employees, once per calendar year, to the employee’s use except sick leave or will now be eligible for leave under the take leave up to ten days or eighty hours, disability leave.” Based on the language FMLA. These employees can include whichever is less, if the following of the Bill, employees could exhaust all companions of biological/adoptive conditions are satisfied: of their unpaid leave under the FMLA parent, close neighbors, aunts, uncles, and use the new provisions of H.B. 48 as • The employee has been employed by cousins and close friends. Virtually a supplemental tool to gain an additional the employer for at least twelve anyone who provides day-to-day care ten days or eighty hours of unpaid leave, months and has worked at least 1,250 or financial support should be able to whichever is less. Despite this language, hours for the employer in the previous qualify. According to Secretary of Labor the House Speaker’s Office and the Ohio twelve months. Hilda Solis, the DOL is taking the Legislative Service Commission have • The employee is the parent, spouse, or position that, “[a]ll families, including both indicated that the new leave is a person who has or had legal custody LGBT (lesbian-gay-bisexual-transgender) intended to run concurrently with the of a person who is a member of the families, are protected by the FMLA.” leave already provided under the FMLA. uniformed services and is called into However, employers should be alert to The DOL’s new interpretation active duty for a period of longer than the possibility that this provision may be specifically provides that an in loco thirty days or is injured, wounded, or challenged in the courts by employees parentis relationship is fact specific , hospitalized while serving on active seeking to tack on additional leave after meaning that the facts of each request for duty. having exhausted their FMLA benefit. leave due to the serious health condition • The employee gives proper notice of of an employee’s child must be carefully the leave. considered. That means that employers, not the DOL, must inquire as to the • For deployments, the leave is taken no nature of an employee’s relationship with more than two weeks prior to, or one a child, and make calls whether any week after, the deployment date. particular relationship is close enough.
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