New protections for pregnant employees in Illinois

Illinois has passed a new law affording pregnant employees additional protections in the workplace. The law, which amends the Illinois Human Rights Act (“IHRA”), goes into effect on January 1, 2015. Here is what employers need to know:

Who is covered under the new law?

The law applies to all Illinois employers regardless of the number of employees they employ.

The law covers all part-time, full-time or probationary employees (including job applicants) who are affected by “pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth.” The law adds them as a protected class under the IHRA, arguably creating higher obligations on employers than those currently in place under federal law.

What is required under the new law?

An employer must provide reasonable accommodations

The new law requires employers to provide reasonable accommodations to employees or job applicants with a medical or common condition related to pregnancy or childbirth. Reasonable accommodation means reasonable modifications or adjustments to the job application process, work environment or to the circumstances under which the position is customarily performed. An employer and employee must engage in a “timely, good faith, and meaningful exchange” to determine the appropriate accommodation. The new law provides a non-exhaustive list of examples of reasonable accommodations:

• More frequent or longer bathroom breaks;
• Breaks for increased water intake;
• Breaks for periodic rest;
• Private non-bathroom space for expressing breast milk and breastfeeding;
• Seating;
• Assistance with manual labor;
• Light duty;
• Temporary transfer to a less strenuous or hazardous position;
• The provision of an accessible worksite;
• Acquisition or modification of equipment;
• Job restructuring;
• A part-time or modified work schedule;
• Appropriate adjustment or modifications of examinations, training materials, or policies;
• Reassignment to a vacant position; and
• Providing leave.

The only exception to the reasonable accommodation requirement is if an employer can demonstrate undue hardship. Undue hardship is defined as “an action that is prohibitively expensive or disruptive.” Also, the employer does not have to create additional positions that the employer would not otherwise have created unless the employer would do so for other classes of employees who need accommodations.

An employer cannot require that an employee or applicant accept an accommodation that she did not request nor can the employer force acceptance of its preferred accommodation.

In determining the necessity for the reasonable accommodation, an employer can request documentation from the employee’s healthcare provider. An employer, however, can only request the following:

• The medical justification for the requested accommodation;
• A description of the reasonable accommodation medically advisable;
• The date the reasonable accommodation became medically advisable; and
• The probable duration of the reasonable accommodation.

It is the employee’s duty to supply this information if requested by the employer.

An employer must provide for reinstatement

Under the new law, an employer must reinstate the employee affected by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth to her original job or an equivalent position with the same pay, seniority, retirement and benefits. Again, the only exception is if reinstatement would create “undue hardship” for the employer.

An employer must provide notice

An employer must post a notice of the employee’s rights under this new law in a conspicuous location in its premises. The Illinois Department of Human Rights (“IDHR”) is charged with preparing the required notice and it will be available on the IDHR’s website. The employer must also outline the rights provided by this new law in its employee handbook if it has one. If the employer fails to do so, the Department may issue a notice giving the employer 30 days to correct the violation. If the violation is not corrected, the Department can initiate a charge of a civil rights violation.

What should an employer do, now?

Prior to January 1, 2015, Illinois employers should do the following:

• Work with their counsel to review and update their policies on reasonable accommodations and requests for medical information;
• Update their employee handbooks in accordance with the new law;
• Check the IDHR’s website for the notice to post and post the notice in a conspicuous location once it becomes available; and
• Train their managers and human resources professionals regarding the new law.

Client Alert Authored by: Meredith C. Pike, Esq.