The Ohio Fifth District Court of Appeals last week released an opinion in Nursing Care Mgmt. of Am., Inc. v. Ohio Civ. Rights Comm’n, that upheld the Ohio Civil Rights Commission’s determination that an employer unlawfully terminated an employee on the basis of pregnancy when the employer terminated the employee because she required pregnancy-related disability leave but had not met the minimum length of service requirements for maternity leave under the employer’s leave policy. In the decision, the Fifth District sets forth a rule requiring employers to provide maternity leave for a “reasonable period of time” and then reinstate the employees to their former positions—or positions of like status and pay—regardless of the employers’ policies on disability or maternity leave or whether the employees qualify for leave under the federal Family and Medical Leave Act (FMLA).
In Nursing Care, employee Tiffany McFee, who was already pregnant at the time of her hire, requested leave for a pregnancy-related medical disability after being employed only eight months. Under the policy of her employer, Pataskala Oaks, employees were eligible for 12 weeks of leave after one year of service. Employees with less than one year of service were not eligible for leave. Keep in mind as well that the FMLA only guarantees an employee 12 weeks of unpaid family or medical leave after an employee has 12 months of service—provided the FMLA applies to the employer and the other FMLA requirements are met. As a result, Pataskala Oaks terminated Ms. McFee’s employment because she did not qualify for leave. The termination came approximately one week after her request for leave and three days after she gave birth.
Ms. McFee filed a charge of discrimination with the Ohio Civil Rights Commission (OCRC). The Commission determined that Ms. McFee’s termination was unlawful and took the view that Ohio law requires that an employer provide a reasonable maternity leave regardless of the employer’s policy and regardless of length of service. Pataskala Oaks appealed and argued that employers may place a length of service requirement on leaves of absence, including those for pregnancy, so long as the requirement is evenly applied. The trial court reversed the Commission’s determination, and the OCRC appealed to the Fifth Appellate District Court of Appeals.
The appellate court looked to an Ohio administrative regulation implementing the pregnancy discrimination statute, Ohio Admin. Code (“OAC”) 4112-5-05. OAC 4112-5-05(G)(2) states, “[w]here termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.” OAC 4112-5-05(G)(6) also states, “if the employer has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original position or to a position of like status and pay, without loss of service credits.” (Emphasis added.) OAC 4112-5-05(G)(5) allows for employer leave policies and states that conditions on leave should be in accordance with the employer’s leave policy.
Pataskala Oaks argued that its leave policy was facially neutral and thus not discriminatory because Ms. McFee would have been terminated regardless of the reason for the leave—whether pregnancy-related or otherwise. The court, however, held that OAC 4112-5-05(G)(2) unambiguously applied to this situation and prohibited Ms. McFee’s termination because of her need for—but failure to qualify under the employer’s policy for—maternity leave. The court found this result to be consistent with the goals of the federal and Ohio pregnancy statute—to “ensur[e] that women will not lose their jobs on account of pregnancy disability” and to “ensure [that] a female employee is not put in a position of choosing between her job and the continuation of her pregnancy.” Thus, despite her lack of the requisite service required under the employer’s leave policy, the court held that Ms. McFee nevertheless was entitled to a “reasonable” maternity leave—a length of time that the court left undefined except to the extent that it upheld as reasonable the seven week leave recommended by Ms. McFee’s physician based on her individual circumstances.
This view, which admittedly is consistent with earlier Ohio state and federal court decisions, and the regulations on which it is based contradict the plain language of the Ohio statute, which states that “[w]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected” because it requires employers to treat pregnant employees more favorably with respect to disability/medical leave than other non-pregnant female employees and male employees. The OCRC’s view on this issue and the administrative regulations also contradict the case law interpreting the federal Pregnancy Discrimination Act (PDA), on which the Ohio statute is based. Therefore, unless and until the Ohio Supreme Court has an opportunity to rule on this issue, the Nursing Care decision should serve as a reminder to employers in Ohio that the Ohio Civil Rights Commission takes the view—which was approved by the Fifth Appellate District in this decision—that all employees, regardless of length of service or the applicability of the FMLA, are entitled to reasonable pregnancy-related or maternity leave.
On July 29, 2009, the Ohio Supreme Court, with Justices Pfeifer and O’Donnell, dissenting, agreed to accept the defendant employer’s appeal for review. We will keep you posted as this case proceeds to oral argument and decision.