Effective July 2, 2010, employers with 50 or more employees are required to provide ten work days or eighty work hours (whichever is less) of unpaid leave to any employee who is the parent or spouse of a person who is a member of the uniformed services, when the service member is called to active duty or is injured, wounded, or hospitalized while serving in active duty. The statute applies not only to private employers, but also the state or any agency of the state, municipal corporation, county, township, or school district.
Pursuant to Ohio’s Military Family Leave law, Ohio Revised Code Chapter 5906, the employee is eligible for unpaid leave, provided that other certain criteria are met. The eligibility criteria is similar to the criteria established by the Family Medical Leave Act (“FMLA”) – the employee must have been employed for at least twelve consecutive months and worked for at least 1,250 hours in the twelve months immediately preceding the leave. Moreover, leave is limited to once per calendar year. However, unlike the FMLA, employees are eligible for leave under the Ohio Military Family Leave Act regardless of whether the employee has 50 employees within 75 miles of the worksite, as long as the employer has 50 or more employees in total.
Ohio’s Military Family Leave law only covers active duty in the active military service for periods of longer than 30 days. It does not include training, or the period of time for an examination to determine fitness for military duty, unless that period of time is contemporaneous with an active duty period. Like the FMLA, an employer may require an employee requesting leave to provide certification from the appropriate military authority. In order to use the leave, the employee cannot have any other leave available, except sick leave or disability leave. If the employee meets all criteria, he or she is eligible for leave under Ohio’s Military Family Leave law.
However, the employee must provide notice to the employer of the need for such leave at least fourteen days prior to taking leave, if the leave is being taken because of a call to active duty. If the employee is taking leave because of an injury, wound, or hospitalization, the employee must provide notice at least two days prior. However, an obvious exception to the notice requirement exists where the leave is taken because the injury, wound, or hospitalization is of a critical or life- threatening nature. In such circumstances, the employee may take leave without providing any notice to the employer. In cases of deployment, the dates on which an employee takes leave cannot occur more than two weeks prior to or one week after the deployment date.
In addition, employers are required to continue to provide benefits (including medical insurance, disability insurance, life insurance, pension plans, and retirement plans) to employees during the leave period. However, the employer is not required to pay the employees’ salary or wages during the leave period. When the employee’s leave concludes, the employer must restore the employee to the position the employee held prior to taking that leave or a similar position. This includes the equivalent seniority, pay, benefits, and other terms and conditions of employment.
Of course, retaliation against employees for using such leave is prohibited. Employers cannot deny the exercise or attempted exercise of a right to military family leave. Employers also cannot retaliate against an employee for supporting another employee’s exercise of the right to such leave. If such a violation occurs, employees can sue for injunctive relief and money damages to enforce their rights.
Employers should be aware that Ohio’s Military Family Leave law provides broader protection than the FMLA. With the number servicemen currently in active duty, employers should expect an increase in the number of employees qualified for military leave around the state.
If you would like a full copy of the statute, or if you have any other questions related to this statute or any other employment matters, please feel free to contact one of our Employment Liability Practice Area Attorneys.