Thursday, October 25, 2007

12-week maternity leave up for vote

Commission's proposal would expand benefit to more moms-to-be

By Dennis J. Willard

The Akron Beacon Journal

The Ohio Civil Rights Commission is expected to vote today to reach beyond federal mandated benefits and require companies with four or more employees to grant up to 12 weeks of unpaid maternity leave to pregnant women.

Under the ''revision to the administrative rule on pregnancy discrimination,'' moms-to-be would also be eligible as soon as they are on the job rather than being required to work at least one year and 1,250 hours in the preceding year before firms would have to grant unpaid leave.

The federal Family Medical Leave Act (FMLA) applies to companies with 50 or more employees, and the benefits are not available immediately.

Although the vote is scheduled for this morning, the final word on the matter must be granted by the legislature's Joint Committee on Agency Rule Review (JCARR), where the business community, particularly small companies that oppose the idea, would be expected to have greater influence.

Still, the move signals a new aggressiveness by the commission to be proactive on civil rights. The commission is attempting to extend unpaid leave to up to 12 weeks by way of a 1977 rule related to sexual discrimination laws that prevent companies from firing women for taking a ''reasonable'' amount of time off after delivering a baby.

Toni Delgado, a commission spokeswoman, said the rule is needed because the law is unclear about the definition of ''reasonable.''

''Leaving it up to the employer and the employee to decide what is reasonable can be disastrous,'' Delgado said. ''The proposed amendment clarifies what reasonable is.''

Delgado said the unpaid leave could be taken during the pregnancy, after the child is born, or split between the two periods. She said a woman could also seek the leave based on a physician's recommendation.

She said 18 other states require benefits beyond the FMLA, including California, which grants 16 weeks of unpaid leave, and Hawaii, which allows 18 weeks, half of which are paid.

''We are talking about ensuring no person is losing their job or has to be concerned about losing their job because they are pregnant,'' Delgado said.

The rule also would require employers to assign pregnant women to ''light-duty'' jobs under a doctor's orders.

Small businesses could argue against granting the leave because of ''business necessity,'' Delgado said.

Revisions challenged

Vincent Tersigni, an Akron attorney with Vorys, Sater, Seymour and Pease, which specializes in labor and employment law, said legislators, not the commission, should determine whether pregnant women should be treated as a distinct class under Ohio law.

He said Ohio law requires employers to ensure that pregnant employees are ''treated the same for all employment-related purposes.''

''No one wants to treat pregnant women worse than anyone else, but the goal of the law is to treat everyone the same'' Tersigni said. ''The concern of employers is that the regulations go beyond what the commission has the authority to do.''

Tersigni said the commission is trying to ensure there is no discrimination, but change in the administrative rule would not apply to men or women whose ability to work is affected by nonpregnancy-related issues.

The commission is also stretching by requiring light duty for some pregnant women, a designation that historically has been limited to employees recovering from industrial injuries covered by the state's Bureau of Workers' Compensation.

Panel gets final say

The commission unveiled the idea in February and made changes to the regulation after a public hearing in August.

State Rep. Ross McGregor, R-Springfield and chairman of the Joint Committee on Agency Rule Review, said he knew the civil-rights commission was looking at unpaid maternity leave, but was not aware it was scheduled for a vote today.

McGregor said he could not comment until further review because the matter will come to his committee.

State Sen. Capri Cafaro, D-Girard, a JCARR member, said the committee is very limited in its scope to review an administrative agency's actions and does not rule on the relative merit of policy.

''It has nothing to do with opinions or ideology,'' Cafaro said.

Last week, Policy Matters Ohio released a study that indicated 445,000 working women in Ohio are not eligible for pregnancy and childbirth leave.

The study outlined the benefits of granting maternity leave, including rest, postnatal care, breast-feeding and bonding, and said that only 4.8 percent of employed women give birth in a given year.