The below content should be reviewed in conjunction with the in-depth federal coverage of this topic provided above.

Author: Alison M. Day, Littler Mendelson, PC

Summary

  • Ohio does not currently require state family and medical leave for employees of private-sector employers. See Family and Medical Leave.
  • However, Ohio private-sector employers with 50 or more employees must provide family military leave. See Covered Employers.
  • In order to qualify for Ohio's family military leave, an employee must be employed by the employer for at least 12 consecutive months and for at least 1,250 hours in the 12 months preceding the leave. See Employee Eligibility.
  • If an employee is eligible for Ohio's family military leave, covered employers must provide the employee with up to 10 days or 80 hours, whichever is less, of unpaid leave to the employee whose parent, spouse, legal custodian of a member of the uniformed services is called into active duty for a period longer than 30 days, or is injured, wounded, or hospitalized while serving on active duty. See Length and Purpose of Leave.
  • Qualified employees must provide 14 days' notice of their intention to take leave if the leave is taken because of a call to active duty, or at least two days prior to taking leave if due to an injury, wound, or hospitalization of the servicemember. See Notice and Certification.
  • Employers must continue to provide benefits to the employee during the period of time the employee is on leave. See Benefits and Compensation During Leave.
  • Employers have certain job restoration obligations to an employee returning from leave. See Reinstatement.
  • Female employees affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons similar in their ability or inability to work. See Pregnancy Disability Leave.

Family and Medical Leave

Ohio does not currently require state family and medical leave for employees of private-sector employers. However, Ohio employers with 50 or more employees will likely be required to adhere to the federal Family and Medical Leave Act (FMLA). See Employee Leaves > FMLA. In addition, Ohio private-sector employers with 50 or more employees must adhere to Ohio's Military Family Leave Act.

Ohio's Military Family Leave Act

Covered Employers

Ohio's Military Family Leave Act (OMFLA) applies to both public and private employers with 50 or more employees. More specifically, employers include:

  • A private employer;
  • Labor unions;
  • The state or any agency or instrumentality of the state;
  • A municipal corporation, county, township or school district; and
  • Any other political subdivision of the state.

+Ohio Rev. Code § 5906.01(C).

Employee Eligibility

In order to qualify for OMFLA leave an employee must:

  1. Be employed by a covered employer for at least 12 consecutive months;
  2. Have worked at least 1,250 hours in the 12 months preceding the leave; and
  3. Be the parent, spouse, or legal custodian of a member of the uniformed services who is called into active duty for a period longer than 30 days, or is injured, wounded, or hospitalized while serving on active duty.

+Ohio Rev. Code § 5906.02.

The FMLA and OMFLA differ with respect to eligibility in the following ways:

  • While both laws require that the employee work for an employer with 50 or more employees, the OMFLA is more expansive in that it does not have the FMLA's additional requirement that the employee work in a location where there are 50 or more employees within a 75-mile radius.
  • The OMFLA require the employee's 12 months of employment be consecutive, whereas the FMLA states that the 12 months do not have to be consecutive.

Therefore, Ohio employers may face situations where an employee is not eligible under the FMLA for military caregiver leave or military exigency leave but is entitled to leave under the OMFLA. See Employee Leaves > FMLA > Determining Employee Eligibility for FMLA.

Length and Purpose of Leave

Length

Unlike the FMLA, which provides for greater periods of leave in any 12-month period, an eligible employee is entitled to up to 10 days or 80 hours, whichever is less, of military family leave once per calendar year under the OMFLA. The employee must exhaust all available forms of leaves except sick or disability leave. +Ohio Rev. Code § 5906.02.

The OMFLA statutory language implies that leave under the OMFLA supplements leave under the FMLA and that the two cannot run concurrently because an employee may only take OMFLA if he or she is ineligible for FMLA leave (or any other leave offered by the employer with the exception of sick time and disability leave) or has already exhausted his or her FMLA leave entitlement.

Purpose

Employees can take OMFLA when a family member (parent, spouse or individual with whom employee has legal custody), who is a member of the uniformed services, is called into active duty for longer than 30 days or who is injured, wounded or hospitalized while serving on active duty. Leave cannot occur more than two weeks prior, or one week after, the uniformed servicemember's deployment. +Ohio Rev. Code § 5906.02.

Uniformed services means:

  • The armed forces;
  • The Ohio organized militia when engaged in full-time national guard duty;
  • The commissioned corps of the public health service; and
  • Any other category of persons designated by the US president in time of war or emergency.

+Ohio Rev. Code § 5906.01(E).

Active duty means:

  • Full-time duty in the active US military service; or
  • Active duty pursuant to an executive order of the US president, an act of the US Congress, or a proclamation of the governor.

Active duty does not include:

  • Active duty for training;
  • Initial active duty for training, or
  • The period of time for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any duty unless such period is contemporaneous with an active duty period.

+Ohio Rev. Code § 5906.01(A).

Notice and Certification

An eligible employee must provide his or her employer with 14 days' notice of his or her intention to take leave if the leave is taken because of a call to active duty, or at least two days notice if the leave is due to a servicemember's injury, wound, or hospitalization. However, no notice is required if the injury, wound, or hospitalization is critical or life-threatening. +Ohio Rev. Code § 5906.02(A)(3).

An employer may require an employee requesting leave to provide certification from the appropriate military authorities to verify that the employee satisfies the leave eligibility criteria. +Ohio Rev. Code §5906.02(C).

Benefits and Compensation During Leave

Employers must continue to provide benefits to the employee during the period of time the employee is on family military leave. The employee will be responsible for the same proportion of the cost of the benefits as the employee regularly pays during periods of time when the employee is not on leave. Employers cannot deprive an employee who takes family military leave of any benefit that accrued before the date that leave commences. +OH Rev. Code § 5906.03(C).

The employer is not required to pay salary or wages to the employee during the period of time the employee is on leave pursuant to this section. +Ohio Rev. Code § 5906.02(B).

Reinstatement

Upon the completion of the leave, the employer must restore the employee to the position the employee held prior to taking that leave or a position with equivalent seniority, benefits, pay, and other terms and conditions of employment. +Ohio Rev. Code § 5906.02(B).

Prohibited Actions

Employers are prohibited from interfering with, restraining, or denying an employee from taking leave. In addition, an employer cannot terminate, fine, suspend, expel, discipline or discriminate against an employee with regards to any term or condition of employment because of the employee's actual or potential exercise, or support for another employee's exercise, of any right under the law. +Ohio Rev. Code § 5906.03.

Employers are also prohibited from entering into collective bargaining agreements or employee benefit plans that limit or require the employee to waive any rights established under Ohio's family military leave law. If an employer is subject to a current collective bargaining agreement that has military leave provisions that provide leave benefits similar or greater than the family military leave benefits, the employer must provide the greater benefits. +Ohio Rev. Code § 5906.03(E)[LexisNexis: ". See Labor Relations > Collective Bargaining Process.

Employers can taken an employment action independent of the exercise of a right under the law.

Pregnancy Disability Leave

Female employees affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons similar in their ability or inability to work. +Ohio Rev. Code Ann. § 4112.02.

When an employee qualifies for leave under the employer's policy, childbearing must be considered a justification for a reasonable leave of absence. Conditions applicable to the employee's leave (other than its length) are governed by the employer's leave policy.

An employer may maintain a policy with a uniform minimum length of service requirement for leave eligibility with no exception for maternity leave under Ohio law, as long as pregnant employees are treated the same under the policy as non-pregnant employees who are similar in their ability or inability to work. McFee v, Nursing Care Mgt. of Am., Inc. +126 OhioSt.3d 183 (2010); see also [LexisNexis "Ohio Rev. Code Ann. § 4112.01(B); Priest v. TFH-EB, Inc., +711 N.E.2d 1070 (Ohio Ct. App. 1998) (an employer need not provide pregnant women preferential treatment). See Employee Management > EEO - Discrimination: Ohio.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Leaves > FMLA

Employee Leaves > Other Leaves: Ohio

Ohio Civil Rights Commission

Ohio Fair Employment Poster