August 3, 2007
By: Kasey Bond

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:  

• 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.”
  
  
• 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.
  
  
• 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.