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By T. Scott Gilligan, OFDA General Counsel

In the past year, there have been several new developments to the laws governing employee leave.  Two of these developments pertain to pregnancy leave in Ohio and the institution of lactation breaks for nursing mothers. Since funeral service is seeing a large influx of female employees, those issues are becoming increasingly significant for Ohio funeral homes. With the Cincinnati College of Mortuary Science reporting current class ratios at 60% female, funeral homes that are not already confronting these issues soon will be. 

Pregnancy Leave.  For the past several years, the Ohio Civil Rights Commission and Ohio courts have wrestled with the issue of pregnancy leave.  The case of McFee v. Nursing Care Management Care of America brought this issue to the forefront.   In that case, McFee was hired at Pataskala Oaks Care Center about the same time that she had become pregnant.  Pataskala Oaks had a policy that no employee would be eligible for any type of leave until they worked at the Care Center for at least one year.  Eight months into her employment term, McFee obtained a note from her doctor that stated that she was unable to work due to conditions related to pregnancy.  When McFee did not show up for work, she was terminated.  She sued Pataskala Oaks Care Center claiming sexual discrimination. 

The ping-pong fashion in which this case wound its way up to the Ohio Supreme Court shows how divisive this issue is.  Initially, an administrative law judge recommended that McFee’s complaint be dismissed.  The Civil Rights Commission rejected that recommendation and found that the employer’s policy constituted unlawful sexual discrimination.  On review, the Licking County Common Please Court overturned the Civil Rights Commission decision and found that the employer’s leave policy did not violate the laws of Ohio.  The Fifth District Court of Appeals then reversed the trial court and held that the anti-discrimination laws of Ohio expressly required employers to provide employees with a reasonable period of maternity leave.  Because Pataskala Oaks Care Center’s leave policy did not provide maternity leave for employees with less than one year of service, the Court of Appeals held the policy violated the sexual discrimination laws of Ohio.

In the final stage of the McFee case, the Ohio Supreme Court added one more reversal to this up and down case when it overturned the Court of Appeals decision and held that Ohio does not require employers to have a mandatory pregnancy leave policy. The Court found that Ohio law does not mandate preferential treatment for pregnant employees.  Rather, Ohio employers should treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.  Therefore, as long as an employer’s leave policy treats pregnant workers in the same fashion as all other workers, the employer does not have to have a separate pregnancy leave policy. 

Lactation Breaks.  Somewhat overlooked in the Obama health care debate was a new requirement of the Patient Protection and Affordable Care Act of 2010 that amended the Fair Labor Standards Act (FLSA) to mandate lactation breaks.  Under the amended FLSA, employers are now obligated to provide female employees “reasonable” lactation breaks for purposes of dispensing breast milk for up to one year after the birth of the employee’s child.  The U.S. Department of Labor has recently issued a Fact Sheet (No. 73) to flush out the requirements of the new law. 

Basically, the new law provides that for one year after the birth of the employee’s child, the employer must provide a nursing mother with breaks for a reasonable amount of time to express breast milk for the employee’s nursing child.  There is no limit on the number of the breaks to be provided or the duration of the breaks.  The breaks are based on the need of the mother. 

If the employer does not pay the employees during normal breaks, the employer is not required to pay the nursing mother during a lactation break.  On the other hand, if the employer does provide paid breaks, the nursing mother must be paid during the lactation break.  The employer must provide a place for the lactation break that is not a bathroom and that is shielded from view and free from intrusion by co-workers and the public. 

One important provision for Ohio funeral homes is the requirement that the lactation break law only applies to employees that are not exempt from the overtime pay provision of the FLSA.  In Ohio, funeral directors and embalmers are deemed to be “professionals” and are exempt from the overtime pay requirements of the Fair Labor Standards Act.  Therefore, if a funeral home is paying its licensees as salaried employees as opposed to hourly employees, the funeral home would not have to provide lactation breaks for a licensed funeral director or embalmer.  Other non-licensed employees who are paid on an hourly basis would have to be provided the mandated lactation breaks.

Military Family Medical Leave Act.  The Ohio Military Family Medical Leave Act, which took effect on July 2, 2010, covers only Ohio employers with 50 or more employees.  Under the new law, employers are required to provide two weeks of unpaid leave to employees who have or have had custody of a uniformed service member when that member is injured or hospitalized while on active duty. 

The new Military Family Medical Leave Act is only applicable to employees who have worked for the employer at least 12 consecutive months or for a minimum of 1,250 hours during the 12 months immediately preceding the leave.  Since it only applies to employers with 50 or more employees, it will cover only a handful of Ohio’s larger funeral homes.

OFDA members with questions regarding any of these leave issues may contact Scott Gilligan at (513) 871-6332.


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