Jan Hensel

Dinsmore & Shohl LLP
Columbus, OH
www.DinsLaw.com
Jan.Hensel@DinsLaw.com
(614) 227-4267

Jan E. Hensel is a Partner in the Labor and Employment Department and a member of the firm’s Recruiting Committee. Ms. Hensel concentrates her practice in the area of employment law, including state and federal discrimination litigation, drafting and revising policies and procedures, and advising clients in all aspects of employment law issues. Prior to joining the firm, Ms. Hensel served as Chair of the Employment & Workers’ Compensation Practice Group at Buckingham, Doolittle and Burroughs.

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The recently enacted Ohio Veterans Package amends the Ohio Civil Rights Act to bar discrimination based on “military status.”

As a result, Ohio employers now face new legal requirements on both the state and federal fronts for how they treat military employees and their families.

Several layers of protection

Employees serving in the National Guard and armed forces reserves already enjoy a number of protections under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). That far-reaching law requires employers to hold jobs open for returning military personnel, with specific time frames based on the length of their employment.

The amendments to the Ohio Civil Rights Act, as well as to the federal FMLA, provide additional rights to service members and their families.

More questions than answers

Until the Ohio Civil Rights Commission issues regulations on the new amendments—or court decisions fill in the blanks—Ohio employers will have to muddle through several key issues:

• The act defines “military status” as “service in the uniformed services.” An open question: Does this include veterans?
• The statute bans job ads indicating a preference regarding military status. Does that make it more likely that disgruntled employees or applicants will file reverse-discrimination claims?
• Can employees file “military status” harassment claims against employers?
• Since the Civil Rights Act prohibits discrimination based on an association with a protected person, do military families have rights under the law?

Advice: At minimum, employers should change their nondiscrimination statements to include military status.

Simultaneous federal changes

Earlier this year, Congress voted to expand FMLA rights to military families. The FMLA gives certain workers the right to take up to 12 weeks of unpaid leave every 12 months for qualifying conditions such as a serious health condition, the birth or adoption of a child or to care for a family member with a serious health condition. The amendment created two new types of FMLA leave:

1. Caregiver leave: Effective immediately, family members can take up to 26 weeks (rather than the normal 12 weeks provided by the FMLA) in a single year to care for a service member with a serious illness or injury suffered in the line of duty.

2. Active-duty leave: A family member can take 12 weeks of leave for a “qualifying exigency” arising out of a call-up to active duty. The U.S. Department of Labor (DOL) expects to issue regulations defining a “qualifying exigency” later this year, but for now there is little guidance to go on.

Federal law raises questions, too

At the same time that Congress is expanding the FMLA, the DOL is trying to overhaul FMLA regulations to address long-standing employer concerns. To help, the DOL wants public comments on the new “caregiver” and “active duty” leaves.

First and foremost is the definition of the term “qualifying exigency” and whether it means an urgent, one-time situation or a routine, daily occurrence. The legislative history suggests that exigencies might include issues related to child care, financial arrangements, briefing sessions, “send-off” and “welcome home” events and similar issues resulting from the service member’s absence.

Also, the DOL has raised numerous questions about the 26-week entitlement of caregiver leave. A public comment period that was set to end April 10 will help the department define certain aspects of this entitlement, such as: when the 12-month period commences (date of the service member’s injury or point in which the employee is needed to care for the service member); the basis on which the 12-month period runs (calendar year or when leave was first taken); and whether “single” means it is a one-time entitlement or whether there is another entitlement in a subsequent 12-month period.

A good time to update policies

It seems the state and federal governments have given Ohio employers an excuse to do a little spring housecleaning on company policies and procedures.

Employers are always well-advised to regularly update employee manuals, company policies and procedures. With the changes in state and federal laws, now may be a good time to look at items that can be changed, such as adding military service to the protected class list, and noting items that will be affected by finalized state and federal regulations.