Legislators to decide fate of pregnancy rule

Published 12:00 am Tuesday, November 27, 2007

It looks as if legislators will decide the fate of a controversial rule involving pregnant employees now that the Ohio Civil Rights Commission (OCRC) has rejected the governor’s request for a delay.

A decision by the OCRC to require companies with four or more employees to provide 12 weeks of either paid or unpaid maternity leave set the stage for a showdown over the proposed rule at the Dec. 3 meeting of the Joint Committee on Agency Rule Review (JCARR). I am vice-chairman of that committee.

Business groups led by the National Federation of Independent Businesses have mobilized their members to oppose the rule. They cited the hardships that would be created by the additional time away from work, and the fact the rule would apply to all pregnant women, regardless of how long they had worked at the company.

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I stopped counting the e-mails that swamped my computer system when they passed 300. And that was in the first two days. As of Nov. 26, I had not received any letters in support of the rule.

Gov. Ted Strickland asked the chairwoman of the commission, one of his appointees, to voluntarily remove the rule from the Dec. 3 JCARR agenda to give businesses an opportunity to assess how they would be impacted by the new rules. She refused the request.

The OCRC said it adopted the rule to clarify current Ohio law, which simply provides that employers of four or more people must provide “a reasonable amount of time” off work for pregnant employees. Federal law requires employers of 50 or more employees to provide 12 weeks of leave.

As I’ve stated in previous columns about issues before this committee, members of JCARR do not have the option of voting for or against rules based on whether they agree or disagree with the rules. Our decision must be based on “the four prongs of JCARR,” which are:

1. The rules do not exceed the scope of the rule-making agency’s statutory authority;

2. The rules do not conflict with a rule of that agency or another rule-making agency;

3. The rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed; and,

4. The rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission.

Our decision Dec. 3 will be based on these four prongs, and not on whether we support or oppose what the OCRC did. If a rule is found to violate any one of the four prongs, we can vote to invalidate the rule.

It is likely the opponents will assert the rule violates prongs 1, 3 and 4, and ask the committee to invalidate the rule. If a majority of the 10-member committee votes to invalidate, it triggers another process unique to JCARR, A Concurrent Resolution outlining the invalidation must be passed by a majority of all members of the Senate and House.

One of the e-mails stated, “Were it not for pregnant women, none of us would be here today.”

However, it went on to say these issues should be decided by the people through their elected representatives. Members of the OCRC are appointed, not elected.

Legislators will decide the fate of the proposed rule, even though we were not involved in proposing this expansion of pregnancy leave for working women by the OCRC.

Tom Niehaus is a member of the Ohio Senate and represents the 14th District.