Now that Governor Pat Quinn signed into law the Pregnancy Accommodation Act (also referenced to as the "Pregnancy Fairness law"), amending the Illinois Human Rights Act, Illinois finds itself among a handful of states offering enhanced workplace rights to pregnant employees. A number of significant developments involving pregnancy-related accommodations have taken place in the past few months: the U.S. Equal Employment Opportunity Commission issued its controversial regulations on July 14, 2014 and the Supreme Court heard oral arguments in the Young v. UPS case. Many employers around the country anxiously await the Supreme Court’s decision, hoping that it settles the question of whether light-duty programs, previously offered only to those employees injured on the job, must also be made available to pregnant employees who are unable to perform their jobs. The Pregnancy Accommodation Act dramatically shifts the analysis in Illinois, creating a series of new rights and obligations that employers need to understand and comply with beginning January 1, 2015, regardless of how the Supreme Court decides the UPS case.
Under the Act, it is a civil rights violation for an employer to
- not make reasonable accommodations, if so requested, to an employee for "conditions related to pregnancy, childbirth, or related medical conditions," unless the employer can demonstrate the accommodation would impose an undue hardship on the employer;
- require a job applicant or employee to accept an accommodation that the applicant or employee chooses not to accept;
- require an employee to take leave if another reasonable accommodation can be provided;
- retaliate against an applicant or employee for requesting an accommodation; or
- fail to reinstate an employee affected by pregnancy, childbirth or common related conditions to her original or an equivalent job with equivalent pay and benefits upon her signifying her intent to return or when her need for reasonable accommodation ceases, absent proof of an undue hardship on the employer's business.
Employers with one or more employees are covered by the Act. Moreover, the Act applies not only to full-time employees, but also to part-time and probationary employees "affected by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth."
Helping clarify what will be expected of employers, the Act provides a lengthy list of possible accommodations, some of which go beyond what many employers are used to considering in the context of Americans with Disabilities Act accommodations. Possible accommodations include, but are not limited to:
- more frequent or longer bathroom breaks, or breaks for increased water intake or periodic rest;
- private non-bathroom space for expressing breast milk and breastfeeding;
- assistance with manual labor;
- light duty, temporary transfer to a less strenuous or hazardous position, job restructuring or reassignment to a vacant position;
- the provision of an accessible work site or modification of equipment;
- a part-time or modified work schedule or time off; and
- appropriate adjustment or modifications of examinations, training materials or policies.
The fact that an employer provides a similar accommodation to other, non-pregnant employees, regardless of the reason, creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer. This means that an employer must provide accommodations to pregnant employees similar to those it gives to disabled employees or employees who were injured on the job.
Employers may request documentation from the employee's health care provider concerning the requested accommodation if the request is "job related and consistent with business necessity." The Act limits employer inquiries to 1) the medical justification for the requested accommodation, 2) a description of the reasonable accommodation that is medically advisable and 3) the probable duration of the reasonable accommodation.
Employers may refuse to provide an accommodation only when it poses an undue hardship on the company. The Act defines undue hardship as an action that is "prohibitively expensive or disruptive" when considered in light of a number of factors, including the nature and cost of the accommodation needed, the overall financial resources of the facility or facilities involved, the number of employees at the facility, and the overall size and financial resources of the employer generally. The burden of establishing that an undue hardship exists falls on the employer.
Employers must post a notice approved by the Department of Human Rights (not yet issued), or include a statement in any handbook summarizing the requirements of the Act and information pertaining to the filing of a charge.
Employers with operations in Illinois should carefully review—and, where necessary, revise—their reasonable accommodation and leave policies to ensure that such policies reflect the new rights afforded pregnant employees, employees attempting to become pregnant and employees with medical conditions arising from pregnancy or childbirth. Managers and human resources professionals should be trained regarding the employer’s obligation to engage in the interactive process and accommodate pregnancy-related conditions.