Federal & State Regulations | FMLA - Ohio | J. J. Keller® Compliance Network

Summary of differences between federal and state regulations

In addition to the federal FMLA, Ohio employers need to be aware of state provisions.

Parental leave

Unlike the FMLA which covers all public employers and many private employers, Ohio’s parental leave applies only to state employers.

Employee eligibility

To be eligible for leave benefits, an employee must be employed on a permanent full-time or part-time basis and work 30 or more hours per week.

Leave entitlement

Unlike the FMLA which allows 12 weeks of leave, Ohio grants eligible state employees only six continuous weeks of parental leave. There are no provisions for intermittent leave.

Until 10/3/2023, the first 14 days of leave were unpaid, after which the employee received pay. Ohio did allow employees to use accrued vacation, sick, personal, and compensatory time in order to be paid during the 14-day waiting period and to supplement their pay during the remaining part of the parental leave period. This supplemental pay could amount only to 100% of their normal pay.

As of 10/3/2023, there is no waiting period.

In addition, employees taking leave for the adoption of a child can elect to receive a $5000 payout for adoption expenses instead of receiving the paid leave benefit as outlined above.

Please note that the Ohio Supreme Court ruled that an employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination. Pregnant employees are entitled to the same protections as other employees. Before the decision, the Ohio Civil Rights Commission held that upon hire, all pregnant employees were eligible for leave for pregnancy and related medical conditions, even if leave for other reasons was not available until employees had worked a specified length.

Reasons for leave

Eligible employees may take six continuous weeks of parental leave for the birth or adoption of a child.

Maintenance of health benefits

Ohio requires that employees continue to remain eligible to receive all employer-paid benefits during parental leave.

Job restoration

Unlike the FMLA, Ohio does not provide job restoration rights to eligible employees.

Notice

Unlike the FMLA, Ohio does not mandate any notice requirements.

Military family leave

Ohio allows employees to take leave for reasons similar to the FMLA’s qualifying exigency provisions, or leave to care for an injured servicemember, although state law is more restrictive. Once per calendar year, an employer shall allow an employee to take leave up to 10 days or 80 hours, whichever is less.

“Employer” means a person who employs 50 or more employees and includes the state or any agency or instrumentality of the state, and any municipal corporation, county, township, school district, or other political subdivision of the state.

For employees to be eligible for such leave, the following conditions must be satisfied:

The employer has employed the employee for at least 12 consecutive months and for at least 1,250 hours in the 12 months immediately preceding commencement of the leave.
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 for a period longer than 30 days, or who is injured, wounded, or hospitalized while serving on active duty in the uniformed services.
- “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 employment for an examination to determine the fitness of the person to perform any duty unless such period is contemporaneous with an active duty period.
- “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.
The employee gives notice to the employer at least 14 days prior to taking leave if the leave is being taken because of a call to active duty, or at least two days prior if the leave is being taken because of an injury, wound, or hospitalization. If the employee receives notice from a representative of the uniformed services that the injury, wound, or hospitalization is of a critical or life-threatening nature, the employee may take the leave without providing notice to the employer.
The dates on which the employee takes leave occur no more than two weeks prior to or one week after the deployment date of the employee's spouse, child, or ward or former ward.
The employee does not have any other leave available for the employee's use except sick leave or disability leave.

An employer may require an employee requesting such leave to provide certification from the appropriate military authority to verify that the employee satisfies the criteria described in divisions (2), (3), and (4) above.

Benefit maintenance

The employer must continue to provide benefits to the employee during such leave. The employee shall be responsible for the same proportion of the cost of the benefits as the employee regularly pays during periods when the employee is not on leave. The employer is not required to pay salary or wages to the employee during such leave.

“Benefits” means the employment benefits, other than salary or wages, that an employer regularly provides or makes available to employees, including, but not limited to, medical insurance, disability insurance, life insurance, pension plans, and retirement plans.

Job restoration

Upon the completion of the leave, the employer must restore the employee to the position held prior to taking that leave or a position with equivalent seniority, benefits, pay, and other terms and conditions of employment. An employer shall not interfere with, restrain, or deny the exercise or attempted exercise of these rights.

An employer must not deprive an employee who takes such leave of any benefit that accrued before the date that leave commences. Employers may provide leave benefits greater than those established under this chapter.

An employer must 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 these rights.

Pregnancy leave

Employers with four or more employees cannot discriminate on the basis of sex, and this includes pregnancy. Employers are prohibited from discriminating because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

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 constitutes unlawful sex discrimination.

Written and unwritten employment policies involving commencement and duration of maternity leave must be so construed as to provide for individual capacities and the medical status of the woman involved.

Women must not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy a female employee would qualify for leave, then the employer must consider childbearing to be a justification for leave of absence for female employees for a reasonable period of time. For example, if a female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing. Conditions applicable to her leave (other than its length) and to her return to employment must be in accordance with the employer’s leave policy.

If the employer has no leave policy, childbearing must be considered to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, a female employee must be reinstated to her original position or to a position of like status and pay, without loss of service credits.

Crime victim leave

All Ohio employers must provide employees with unpaid time off to deal with crime victims.

Eligible employees include crime victims, the victim’s family members, or representative that need time off for a qualifying reason.

The law does not specify an amount of leave, nor does it identify a leave year.

Employees may take the leave to:

Participate (at the prosecutor’s request) in preparation for a criminal or delinquency proceeding,
Attend a criminal or delinquency proceeding if the employee’s attendance is reasonably necessary to protect the interests of the victim, or
Attend a criminal or delinquency proceeding if the employee’s attendance is pursuant to their constitutional and statutory rights.

The law does not specifically mention job protection, but employers may not discharge, discipline, or take other forms of retaliation against employees for engaging in the leave.

Leave under this law would not run concurrent with federal FMLA, since the reason does not qualify for FMLA.