• No Greater Leave Rights for Pregnant Employees, Ohio Supreme Court Rules, But Questions Remain
  • July 21, 2010 | Authors: Scott A. Carroll; Kelli Webb Michaud
  • Law Firms: Jackson Lewis LLP - Cincinnati Office ; Jackson Lewis LLP - Cleveland Office
  • The Ohio Supreme Court has ruled that employers may impose length-of-service requirements on maternity leave if the same length-of-service requirements are imposed on all other types of leave. McFee v. Nursing Care Mgt. of Am., Inc., 2010-Ohio-2744 (June 22, 2010).

    Two Leave Policies

    Prior to the Supreme Court’s decision, the Ohio Civil Rights Commission maintained that Ohio’s pregnancy discrimination regulations required that all pregnant employees be eligible for leave for pregnancy and related-medical conditions immediately upon hire. This meant many employers kept up separate leave policies under which pregnancy/maternity leave was available immediately, but leave for other reasons was not available until the employee had been employed for a specified minimum period of time.

    Facts of McFee

    In the McFee case, the employer, Pataskala Oaks, a facility that provides nursing care and rehabilitation services, imposed a one-year length of service requirement for all types of leave, including pregnancy/maternity leave.  Eight months after Tiffany McFee was hired, she presented to Pataskala Oaks a doctor’s note that stated she was unable to work due to conditions related to pregnancy. McFee gave birth soon after.  Three days after giving birth, Pataskala Oaks terminated McFee’s employment due to her extended absence from work.  McFee alleged her termination constituted unlawful sex discrimination on the basis of pregnancy.

    Supreme Court Decision

    The Ohio Supreme Court ruled in favor of Pataskala Oaks.  It held that “an employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination.”  The Supreme Court noted that pregnant employees are entitled to the same protections as other employees —not preferential or more favorable treatment.

    Implications for Employers

    Ohio employers should re-examine their leave policies and handbooks and consider whether imposing a uniform leave policy that addresses all forms of leave and imposes a length-of-service requirement is appropriate.

    While the Ohio Supreme Court’s decision is beneficial to employers, a host of questions and issues relative to leave policies, in general, and pregnancy/maternity leave, in particular, remains.  A short list includes:

    • Under Ohio law, even a uniform leave policy must be consistently applied to all employees, regardless of the underlying reason for the leave requested.  If, for example, an employer maintains a one-year length-of-service requirement but offers a new employee the opportunity to take unpaid leave to help reduce payroll costs, then the employer is granting unpaid leaves and may not be consistently applying a uniform leave-of-absence policy.

    • Many uniform leave policies provide for leave that may be taken only in blocks of time, not intermittently.  However, Ohio law provides for leave for “pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions.”  This means pregnant employees are entitled to leave to attend doctors’ appointments, to treat morning sickness or for any other “short-term” or intermittent reasons.  Policies that require all leave to be taken in blocks of time, therefore requiring a pregnant employee to take the entire day off without pay because of a doctor’s appointment, may violate Ohio’s pregnancy discrimination provisions.

    • Many employers require employees to earn vacation or paid time off incrementally throughout the year, but permit employees to “borrow” against time that will be earned in the future.  Under Ohio law, such policies, arguably, may allow employees to be able to “borrow” other types of leave, including pregnancy/maternity leave, prior to the leave actually being fully “accrued.”

    • Under Ohio law, employees are entitled to “reasonable” leave for maternity and employers who provide “insufficient” leave may be liable for sex discrimination.  However, the terms “reasonable” and “insufficient” remain undefined.  The issue before the Supreme Court in McFee involved only a one-year length-of-service requirement.  An employer not covered by the Family and Medical Leave Act could conceivably impose a five- or ten-year length-of-service requirement before an employee becomes eligible for leave.  Such policies may violate Ohio’s pregnancy discrimination statutes by imposing unreasonable requirements on pregnancy/maternity leave.

    • Similarly, the Supreme Court’s decision did not address the length of time that may be considered “insufficient” for maternity leave.  If, for example, an employer not covered by the FMLA in Ohio offers a maximum of three weeks of leave to employees, including pregnant employees, the Ohio Civil Rights Commission could take the position that such leave is not “reasonable” and, therefore, is “insufficient.”

    Moreover, the Equal Employment Opportunity Commission has recently reiterated that any leave policy that provides for only a defined amount of leave, after which the employee will be terminated, may violate the Americans with Disabilities Act by not providing sufficient leave as a reasonable accommodation to qualified individuals with a disability.  Employers, therefore, also should review their leave policies to determine whether they have such “inflexible” leave policies and should consider adjusting such policies so that employees may receive additional leave as a reasonable accommodation.

    More information on leave as a reasonable accommodation under the ADA can be found in the Jackson Lewis Special Report entitled, Americans with Disabilities Act: Excusing Absences as a Reasonable Accommodation (Part 1), found at: http://www.jacksonlewis.com/events/pdf/ADA&under;Leave&under;SR.pdf.

    Employers should continue to be careful in drafting and administering leave policies, including leaves for pregnancy and maternity.