Employee out on maternity leave: How long must we hold her position?

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in Discrimination and Harassment,Firing,FMLA Guidelines,Human Resources,Maternity Leave Laws

Q. How long am I required to hold a position open for an employee who is on leave due to pregnancy?

A. If you have 50 or more employees within a 75-mile radius, the FMLA applies to you. Pregnancy and pregnancy-related conditions qualify for leave under the FMLA. Under the FMLA, eligible employees are entitled to leave for 12 weeks in a 12-month period.

That is the easiest part of the analysis. Things get more complicated when you consider how the Ohio Civil Rights Commission (OCRC) has historically interpreted the prohibition against pregnancy discrimination under state law.

The Ohio Civil Rights Commission is the state agency charged with enforcing Ohio’s discrimination laws. It also is responsible for implementing regulations that interpret state discrimination laws. One Ohio regulation regarding pregnancy discrimination states:

Where 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.

Historically, the commission has broadly construed this provision.

In effect, the OCRC has taken the position that when a woman suffers a pregnancy-related disability, the employer must give that employee as much time off as she needs for both the pregnancy-related disability and to care for the newborn. Otherwise, the employer’s policy is deemed to provide “insufficient” leave.

The few court decisions that have analyzed the OCRC’s interpretation of the law have found that the OCRC’s position is erroneous, and that a leave of 12 weeks is sufficient to comply with the pregnancy discrimination laws.

Even so, the OCRC is often the first recourse for individuals who believe they have been discriminated against in Ohio.

And the OCRC can find employers that do not comply with its interpretation of the law—regardless of whether it is legally sound—to be in violation of the law.

If that occurs, the employer is left with two choices:

  1. Give in, which usually requires paying back pay to the terminated employee, as well as reinstatement or front pay, as well as changing the employer’s policy to comply with the OCRC’s interpretation of the law.
  2. Face a lengthy and expensive legal fight.

That’s why it may be safest to develop a pregnancy leave policy with enough flexibility to meet the individual leave needs of employees who suffer pregnancy-related disabilities.

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