Authored by Karen E. Milner
Jan 16, 2015
Illinois Governor Pat Quinn signed into law House Bill 8 (the “Amendments”), which amends the Illinois Human Rights Act (the “Act”) to provide greater protections to job applicants and employees who are, or who become, pregnant. The changes are effective Jan. 1, 2015. NOTE: The requirements even apply to small employers with as few as one employee.
While the Act previously prohibited discrimination by Illinois employers against job applicants and employees based on pregnancy, the Amendments expand an employer’s obligations to provide accommodations due to pregnancy, childbirth, and medical conditions related to pregnancy or childbirth.
The accommodation requirements apply to job applicants and all employees. When an employee requests an accommodation due to pregnancy or a pregnancy-related condition, the employer is required to provide reasonable accommodations. Just as with accommodations under the Americans with Disabilities Act, the employer is not required to provide an accommodation that would cause an “undue hardship” on the employer. The term “reasonable accommodations” means “action which would permit such an employee to perform in a reasonable manner the activities involved in the job or occupation.”
Examples of pregnancy accommodations include, but are not limited to:
For an employer to show that a requested accommodation would constitute an “undue hardship,” the employer must show the accommodation is “prohibitively expensive or disruptive.” Four factors considered in making this determination are:
The law also prohibits employers from requiring pregnant employees to accept an accommodation that they did not request or to which they did not agree. An employer cannot require an employee to take leave as an accommodation if the employer can provide another reasonable accommodation. However, if the employee’s requested accommodation in fact imposes an undue hardship, granting a leave of absence may be the only accommodation possible.
As with other similar laws, it prohibits employers from discriminating or retaliating against an employee or applicant for requesting an accommodation.
If a pregnant employee requests an accommodation, the employer may (and should) request documentation to support the request.
For example, if a pregnant employee approaches management/Human Resources and states that she must sit for at least 15 minutes during each hour of her shift, the employer should not provide the employee with the requested accommodation without any documentation to support this request (unless the employer routinely provides accommodations to those requesting the same with no medical supporting documentation). To provide a pregnant employee with a requested accommodation with no medical documentation to verify the need for the specific accommodation could result in a situation where others who request accommodations unrelated to pregnancy are free to claim they also have a medical condition requiring 15 minutes of rest time each hour. In all cases where an accommodation is requested, regardless of how significant the accommodation request is, and regardless of whether the accommodation is needed due to a pregnancy-related condition or other medical condition, the employer should advise the employee that documentation from the employee’s health care provider is necessary before the accommodation can be considered.
Information the employer may request includes:
If the employee refuses to provide documentation from a health care provider verifying the need for an accommodation, the employer may, in that case, require that the employee undergo a fitness-for-duty examination (to include testing only to the degree necessary to determine the employee’s ability to perform the essential functions of her position and what restrictions apply).
NOTE: An employer should only require an employee with pregnancy-related conditions asking for an accommodation to complete a fitness-forduty examination if the employer engages in the same practice for non-pregnant employees who request accommodations due to other medical conditions.
Unless the employer has taken such actions for individuals who needed accommodations for non-pregnancy related conditions, an employer is NOT required to:
Another practical implication is that employers should not assume, based on stereotypes, that a pregnant employee needs an accommodation because she is pregnant. Many pregnant employees are able to successfully fulfill all job requirements up to the day of the baby’s delivery.
NOTIFICATION TO EMPLOYEES
The new Illinois law requires employers to affirmatively notify applicants and employees of their pregnancy leave and non-discrimination rights by:
If you have any questions about these changes to the Illinois Human Rights Act or any other employment matter, please do not hesitate to contact Karen E. Milner.