What you need to know about Ohio FMLA

The federal Family and Medical Leave Act (FMLA) allows for qualified employees to take up to twelve weeks of unpaid time off from their job without fear of penalty from their employers. While Ohio does not offer additional leave, the state does have several laws related to leave time. Ohio also provides several other protections for employees with family members in the military.

Ohio Leave-Relevant Laws

While private companies in Ohio are not mandated to provide paid holiday leave or sick time to their employees, if they do decide to provide time, it must be consistent with an employment policy. Companies can also deny paying employees any accrued vacation pay upon termination, provided that this denial was made clear in company policy. A company can also require employees to use any accrued vacation time by a set point or else forfeit that time.

As is their civic duty, Ohio employees may be called away to serve jury duty, and an employer is not required to compensate their employee for this service. However, an employer cannot fire their employee for serving jury duty. Furthermore, a company cannot mandate that an employee use any accrued sick or vacation time to cover their response to a jury summons.

Ohio/FMLA for Military-Related Leave

Under Ohio laws, an employer with 50 or more employees must provide employees with a family member in the military 80 hours or 10 days of unpaid leave per year, whichever is less. The employee’s family member must be a spouse, parent, child or former ward. To qualify, the employee must have worked at least 1,250 hours in the past year and have been employed for at least 12 months, the same stipulations to qualify for leave under the FMLA.

Employees can use this leave to take off in the two weeks leading up to a deployment date or in the week after. They can also use this leave to tend to a family member injured in the line of service.

Notice for leave under this Ohio/FMLA law must be given at least 14 days in advance, unless the service member’s injury is serious or life-threatening. In that case, advance notice is not necessary.

Leave for Ohio State Employees

In addition to the FMLA, Ohio state laws discuss certain situations in which they may take leave from their job without fear of being penalized.

State employees who put in 30 hours per week or more can take up to six weeks for the birth or placement of a child into their home. This parental leave can include the four weeks of paid leave given to full-time employees and can run concurrently with leave under the FMLA. Part-time state employees may be eligible for prorated paid leave.

State employees are also permitted up to 240 hours of paid leave in a calendar year for organ donation or 56 hours for bone marrow donation.

FMLA/Ohio Case Study

In August 2013, an FMLA violation claim against a Wal-Mart in Ohio showed that employers need to be consistent when applying the attendance and disciplinary policies to a person taking absences covered under the federal leave law.

Joyce Green worked for Wal-Mart in Ohio from 1997 until October 7, 2011, working first as a cashier and finally as an athletic goods supervisor.

The company enforces a leave policy in accordance with FMLA laws that permits employees to ask for leave to tend to their health condition or that of a family member. Wal-Mart’s policy also describes a progressive discipline plan for absences and says that in most cases employees will receive written, oral, and decision-making coaching before being fired after getting a fourth coaching action.

Wal-Mart views all absences as either excused or unexcused, and unexcused absences bring about an attendance “occurrence.” The first three occurrences in a six-month period do not lead to a disciplinary coaching session. However, when an employee receives a fourth occurrence, they typically receive coaching and further coaching for each following occurrence.

During her employment at Wal-Mart, Green took three FMLA leaves periods, which were all granted by the store manager. She was reinstated to her position after returning from these leave periods, and no one ever made adverse or inappropriate comments regarding the leave.

In 2010, Green had several unexcused absences and used some FMLA leave time. In January 2011, Green had several FMLA-approved absences that were wrongly designated as unexcused absences and counted as attendance occurrences. After two unexcused absences in February, Green received oral coaching regarding her attendance – her first ever since starting the company in 1997.

Several other subsequent incidents led to Green’s fourth coaching action in October 2011 and, therefore, her termination. Green sued saying she had been retaliated against for using FMLA leave.

Wal-Mart acknowledged that quite a number of absences in January 2011 were erroneously marked as unexcused absences, but contended that Green had accrued enough unexcused absences to warrant coaching under its policy.

The district court pointed out that when an employee is terminated for excessive absenteeism based partly on the use of FMLA leave, it may still breach the FMLA, whether or not the leave was viewed as a part of other absences.

The court also pointed out that Wal-Mart’s records revealed Green had seven occurrences when she was given oral coaching, and she once had as many as 14 occurrences but wasn’t disciplined under company policy.

Additionally, Green’s first-ever oral coaching in February 2011 happened just after she came back from FMLA leave. This led the court to question if Green’s FMLA leave in January 2011 was seen as a negative factor in Wal-Mart’s decision to address discipline.

Ultimately, the court found that Wal-Mart had indeed treated her differently after the FMLA leave, emphasizing that Green had been employed by Wal-Mart since 1997 and had never been disciplined. The court decided the somewhat arbitrary use of company policy was enough to let Green’s FMLA retaliation claim proceed to trial.
For employers, this FMLA court case functions as a good reminder that company policies need to be applied consistently, and FMLA record keeping needs to be vigilant.

 

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