For years, the Ohio Civil Rights Commission has taken the position that any minimum length of service requirement in a maternity leave policy violates Ohio’s pregnancy discrimination statute. Even the 12-month minimum service requirement under the federal Family Medical Leave Act ("FMLA") could not be applied to pregnant employees in Ohio, according to the Commission. In the Commission’s view, it was pregnancy discrimination for an employer to terminate a pregnant employee if there was insufficient or no maternity leave available to the employee, regardless of the employee’s length of service.

In a case decided this week, McFee v. Pataskala Oaks Care Center, the Ohio Supreme Court struck down the Commission’s maternity leave rule. The employer, Pataskala, had a policy that required that an employee must be employed for one year before he or she would be eligible for leave for any purpose. Eight months after McFee started working for Pataskala, she was unable to work because of pregnancy. Pataskala terminated her employment because she had not met the minimum length of service requirement required to take a leave.

The Ohio Supreme Court held that the employer’s policy was "pregnancy blind" in that it treated pregnant and non-pregnant employees the same. Pataskala’s one-year length of service requirement applied to maternity leaves and all other forms of medical leaves of absence. Rejecting the position of the Civil Rights Commission, the Court held that a pregnant employee may be terminated for an unauthorized absence just as any other employee who has not yet met a minimum length of service requirement. Importantly, the Court held that Ohio’s pregnancy discrimination statute requires employers to treat pregnant employees the same as non-pregnant employees, but does not entitle pregnant employees to preferential treatment.

Following the decision, Ohio employers may want to reevaluate their leave policies. Employers who removed length of service requirements based on the Commission’s interpretation may now treat all employees equally.