STEPHEN P. POSTALAKIS BLAUGRUND, HERBERT, KESSLER, MILLER, MYERS & POSTALAKIS, INCORPORATED OHIO ASSOCIATION OF COUNTY BOARDS SERVING PEOPLE WITH DEVELOPMENTAL DISABILITIES PERSONNEL COUNCIL SEPTEMBER 29, 2010 Ohio Military Family Medical Leave Act

Ohio Revised Code § Each calendar year, employee entitled to take up to 10 days or 80 hours of leave, whichever is less, if all of the following conditions are satisfied:  Employer has employed employee for at least twelve (12) consecutive months and for at least 1,250 hours in the 12- months immediately preceding commencement of the leave.  Employee is the parent, spouse, or a person who has or had legal custody of a person who is a member of the uniformed services and who is called into active duty in the uniformed services for a period longer than thirty days or is injured, wounded, or hospitalized while serving on active duty in the uniformed services.

Ohio Revised Code §  Employee gives proper notice to employer.  The dates on which employee takes leave occur no more than two (2) weeks prior to or one (1) week after the deployment date of the employee’s spouse, child, or ward or former ward.  Employee does not have any other leave available for the employee’s use except sick leave or disability leave.

Similarities to FMLA Length of service and hours worked requirements.  Employed for at least twelve (12) consecutive months and for at least 1,250 fifty hours in the twelve (12) months immediately preceding commencement of the leave. Includes maintenance of benefits, job restoration rights, freedom from adverse job actions for exercising rights under the law.  See R.C. §§ (B) and

Similarities to FMLA Contains a similar provision of qualifying exigency under FMLA, but does not really define:  Leave is allowed when the employee is the parent, spouse, or a person who has or had legal custody of a person who is a member of the uniformed services and who is called into active duty in the uniformed services for a period longer than thirty days…. But see notice provision below. An employer may require an employee requesting to use the leave established under this section to provide certification from the appropriate military authority.

Differences between Ohio Military FMLA and Federal FMLA Ohio law does not require, for purposes of applicability, 50 employees within 75 miles of the employee’s worksite.  Eligibility based upon length of service and hors worked only. Leave available to parent, spouse, or a person who has or had legal custody of a person who is a member of the uniformed services.  FMLA: eligible employee who is a spouse, son, daughter, parent, or next of kin of a covered servicemember.  Does not appear to be a time limit on the “had custody” element.

Differences between Ohio Military FMLA and Federal FMLA Ohio Military FMLA is independent of the FMLA  Leave must be allowed even if an employee is not eligible for or has exhausted existing FMLA leave.  No indication that it cannot run concurrently with FMLA. Under Ohio Military FMLA, the employee must have exhausted paid leave (except for sick or disability leave).

Differences between Ohio Military FMLA and Federal FMLA Employee must give notice at least fourteen (14) days prior to taking the leave if the leave is for a call of active duty. If leave is for an injury, wound, or hospitalization, the employee must give at least two (2) days notice. If leave is for an injury, wound, or hospitalization of a life-threatening nature, no notice to the employer is required.  FMLA requires 30 days or as soon as practicable.

Definition of “uniformed services” R.C (E) “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 president of the United States in time of war or emergency.  Leave applies to service member deployed for active duty or injured while serving on active duty.

Definition of “uniformed services” R.C (A): “Active duty” means full-time duty in the active military service of the United States or active duty pursuant to an executive order of the president of the United States, an act of the congress of the United States, 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.

Employer prohibitions An employer shall not interfere with, restrain, or deny the exercise or attempted exercise of a right established under this chapter. An employer shall not discharge, fine, suspend, expel, discipline, or discriminate against an employee with respect 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 established under R.C. Chapter  Employer not prohibited from taking an employment action that is independent of the exercise of a right under R.C. Chapter An employer shall not deprive an employee who takes leave pursuant to R.C. section § of any benefit that accrued before the date that leave commences.

Employer prohibitions An employer shall not require an employee to waive the rights to which the employee is entitled pursuant to this chapter. On and after the effective date of this section, an employer shall not enter into a collective bargaining agreement or employee benefit plan that limits or requires an employee to waive the rights established under R.C. Chapter An employer shall comply with any collective bargaining agreement or employee benefit plan that provides leave benefits similar to the type established under this chapter that are greater than the leave benefits established under R.C. Chapter 5906.

Questions? Thanks for attending!