Key points:

• Effective January 1, 2015

• Reasonable accommodation

• Medical certification

• Posting and notice

Illinois Governor Pat Quinn has approved a law providing additional protections for pregnant women in the workplace. The law will go into effect on January 1, 2015. 

House Bill 8 (P.A. 98-1050) amends the Illinois Human Rights Act (“IHRA”) and creates new responsibilities for employers with respect to their pregnant workers beyond those required under federal law. 

Illinois joins a growing number of states that make employers provide some form of accommodation to pregnant workers. (For an example, see our article, California Issues Amended Pregnancy Regulations, Extends Coverage to Perceived Pregnancy.) Significantly, as illustrated by the new Illinois law, these state laws impose different and arguably greater obligations on businesses than federal laws such as the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), even after passage of the ADA Amendments Act (“ADAAA”). 

Requirements

The new Illinois law (consistent with current federal law) adds pregnancy to the IHRA’s list of classes protected against discrimination. (The IHRA also covers race, color, religion, sex, national origin, among other characteristics.) It defines “pregnancy” as “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.” 

The new law requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth and makes it unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting such accommodations. 

If an employer demonstrates the accommodation would impose an undue hardship on the “ordinary operation of the business of the employer,” however, the employer need not provide the requested accommodation. “Undue hardship” is an action that is “prohibitively expensive or disruptive.” 

The new law defines reasonable accommodations as modifications or adjustments to the job application process, work environment, or circumstances under which a position is customarily performed. It provides a non-exclusive list of examples of reasonable accommodations, including:

• 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 accommodations; 

• Assistance with manual labor; 

• Light duty; 

• Temporary transfer to a less strenuous or non-hazardous position; 

• Acquisition or modification of equipment; 

• Job restructuring; 

• Part-time or modified work schedule; 

• Appropriate adjustment or modifications of examinations or training materials; 

• Assignment to a vacant position; or 

• Providing leave.

The law specifies that employers are not required to create additional employment positions that the employer otherwise would not have created, unless the employer does so or would do so for other classes of employees who needed accommodations. Similar to the ADA, the new law mandates that both the employer and employee engage in a “timely, good faith, and meaningful exchange to determine effective reasonable accommodations.” 

The law prohibits employers from requiring that an employee or applicant accept an accommodation she did not request or from requiring that an employee or applicant accept the employer’s preferred accommodation. 

Medical Certification

Under the new law, employers may require an employee to provide a certification from the employee’s health care provider concerning the need for the requested reasonable accommodation to the “same extent” a certification is required for other conditions related to a disability. However, the law then states that an employer may require only the following information be included in a medical certification: 

1. the medical justification for the requested accommodation(s); 

2. a description of the reasonable accommodation(s) medically advisable; 

3. the date the accommodation(s) became advisable; and

4. the probable duration of the reasonable accommodation(s). 

Reinstatement

The new law requires employers to reinstate an employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position, unless the employer can demonstrate that doing so would impose an undue hardship. 

Posting and Notice Requirements

Under the enactment, an employer must post in a conspicuous location, and include in any employee handbook that the employer maintains, a notice that will be prepared or approved by the Illinois Department of Human Rights summarizing the requirements of the new law and providing information relating to the filing of a charge with the Department, including the right to be free from discrimination and the right to certain reasonable accommodations. 

The Illinois Department of Human Rights will make the new notice available on its website.

Federal Law 

The PDA prohibits discrimination based on pregnancy as it relates to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits (such as leave and health insurance), and any other term or condition of employment. Most courts have held that, under the PDA, if a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her in the same way as it treats any other similarly situated temporarily disabled employee. Most courts have not read the PDA to impose an affirmative obligation to provide accommodations to pregnant workers where no such accommodations are afforded to employees with other temporarily disabling conditions.

Similarly, the ADA generally does not require employers to offer individuals reasonable accommodations if they are temporarily disabled due to a “normal” pregnancy. This is because a “normal” pregnancy is not an “impairment” under the ADA and, therefore, cannot be a disability that would trigger the employer’s ADA reasonable accommodation obligations. However, especially after the passage of the ADAAA, medical impairments resulting from pregnancy (e.g., gestational diabetes) could be sufficient to trigger ADA reasonable accommodation obligations for some pregnancy-related conditions. Even then, however, the ADA reasonable accommodation obligations may be more limited than those under state pregnancy accommodation laws, including the new Illinois law. 

What Should Illinois Employers Do?

Since the new law identifies “light duty” as a reasonable accommodation (one that might be particularly relevant to pregnant employees), employers should review their policies, practices, and contractual agreements with respect to alternative work arrangements and restricted/light duty programs. They also should avoid “workers’ compensation light duty-only programs.” 

Actions Illinois employers should consider taking to prepare for the new law include: 

• Reviewing with counsel their policies on reasonable accommodation; 

• Reconsidering their policies and practices about obtaining medical certification; 

• Regularly checking the IDHR website for the new required poster/notice; 

• Reviewing and revising any employee handbooks to ensure compliance with the new law’s handbook notice requirement; and

• Training managers and supervisors on procedures for responding to accommodation requests from pregnant employees.