What is the Illinois Pregnancy Fairness Law?

Effective January 1, 2015, the Illinois Pregnancy Fairness Law provides workplace protections to all expectant mothers, regardless of an employer’s size.  The Illinois Pregnancy Fairness Law amends the Illinois Human Rights Act, adding “pregnancy” as a protected class under state law.  “Pregnancy” is defined broadly to mean “pregnancy, childbirth, or other medical or common conditions related to pregnancy or childbirth.” Accordingly, effective 1/1/15, the IHRA prohibits discrimination on the basis of “pregnancy” against  applicants and employees and also requires employers to provide accommodations to expectant mothers to enable them to perform the job the job held or sought unless the employer can establishing that doing so would cause an undue hardship on the ordinary operation of the business. The Illinois law also prohibits retaliation against individuals who exercise their right to an accommodation under the law.

What are the differences between the new Illinois law and federal law?

The new Illinois law applies to all employers regardless of size and not only prohibits them from discriminating against any woman coming within the broad definition of pregnancy, but also requires employers to provide accommodations to expectant mothers that are needed to perform the job held by an employee or sought by an applicant, unless the employer can establish that doing so would pose an undue hardship.  In contrast, the federal Pregnancy Discrimination Act (PDA) is part of Title VII of the Civil Rights Act of 1964, and only applies to employers with 15 or more employers. In addition, it is not yet clear that the PDA requires workplace accommodations for pregnant women who do not have a condition that would constitute a disability under the Americans with Disabilities Act Amendments Act (ADAAA) of 2008.  Although the U.S. Equal Employment Opportunity Commission issued guidance on July 14, 2014, opining that the PDA does require an employer to provide reasonable accommodations to all expectant mothers, this issue will actually be decided by the United States Supreme Court this term in Young v. UPS. Oral Arguments in the case are scheduled for December 2014.

Which employees are protected by the law?

The law applies to all women who meet the broad definition of pregnancy regardless of whether they work full or part-time. In addition, the accommodation requirement applies to any woman experiencing “pregnancy, childbirth, or other medical conditions related to pregnancy or childbirth.”  It is unclear whether the law would extend protection to a woman who is not yet pregnant but who is has a medical condition that impacts her ability to conceive.

What is a reasonable accommodation under Illinois law?

Reasonable accommodation is defined by the law to mean “reasonable modifications or adjustments to the job application process or work environment, or to the  manner or circumstances under which the position desired or held is customarily performed, that enable an applicant or employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to be  considered for the position the applicant desires or to perform  the essential functions of that position.” The non-exclusive list of reasonable accommodations identified in the Illinois law are:

  • more frequent or longer bathroom breaks,  breaks for increased water intake, and 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;
  • time off to recover from conditions related to childbirth; and
  • leave necessitated by pregnancy, childbirth, or medical or common  conditions resulting from pregnancy or childbirth.

What is not required by the new Illinois law?

The new Illinois law does not require an employer to create a job, unless the employer does so or would do so for other classes of employees who need accommodations. In addition, an employer is no required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job, unless the employer does so or would do so to accommodate other classes of employees who need it. As a practical matter, an employer will have to ensure that it is treating pregnant workers the same as it treats any other workers to which it provides accommodations, including workers who have experienced a workers’ copensation injury and workers who have a disability under the ADAAA.

What does undue hardship mean?

Undue hardship means an action that is prohibitively expensive or disruptive when considered in light of the following factors:

  • the  nature and cost of the accommodation needed;
  • the overall  financial resources of the facility or facilities involved in  the provision of the reasonable accommodation, the number of  persons employed at the facility, the effect on expenses and  resources, or the impact otherwise of the accommodation upon  the operation of the facility;
  • the overall financial  resources of the employer, the overall size of the business of  the employer with respect to the number of its employees, and  the number, type, and location of its facilities; and
  • the  type of operation or operations of the employer, including the  composition, structure, and functions of the workforce of the  employer, the geographic separateness, administrative, or  fiscal relationship of the facility or facilities in question  to the employer.

The employer has the burden of proving undue hardship and this is a very high threshold that will be extremely difficult, if not impossible for large employers, who are already subject to the Americans with Disabilities Act (ADA) accommodation process. Under the Illinois law, the fact that an employer provides or would be required to provide a similar accommodation to similarly  situated employees creates a rebuttable presumption that the  accommodation does not impose an undue hardship on the employer.

What information can an employer request from workers requesting accommodations under the Illinois law?

Employers are limited to obtaining certain information in support of a request for accommodations under the new Illinois. Employers are permitted to request documentation from a treating health care provider concerning the need for the requested reasonable accommodation or accommodations to the same extent that documentation is requested for individuals with disabilities if the employer’s request for documentation is job-related and consistent with business necessity. However, employers may require only the following information, which individuals requesting an accommodation must provide:

  • the medical justification for the requested accommodation or accommodations
  • a description of the reasonable accommodation or accommodations that are medically advisable
  • the date the reasonable accommodation or accommodations became medically advisable, and
  • the probable duration of the reasonable accommodation or accommodations.

The law further requires the employer and employer to engage in a “timely, good faith, and meaningful exchange to determine effective reasonable accommodations.” Importantly, the law also prohibits an employer for imposing an accommodation on an employee that has not been requested or that has not been accepted by the employee. This provision has the potential to create significant issues for employers. One can easily envision a situation in which an expectant mother is rejecting accommodations that are actually sufficient to meet medical restrictions and reasonable to accommodate the worker. Yet, under the law, an employer will have to continue to engage in dialogue with the employee until the employee agrees to the accommodation.

What posting or publication requirements does the Illinois law impose?

It is a violation of the Illinois law if an employer fails to post or keep posted in a conspicuous location where notices to employees are customarily posted, or fail to include in any employee handbook information concerning an employee’s rights under the law. A notice of these rights is available on the IDHR’s website at http://www2.illinois.gov/dhr/Publications/Pages/Pregnancy_Rights_Notice_Requirement.aspx.