New Bill Expands Illinois Human Rights Act's Pregnancy Protections

by Holland & Knight LLP
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On August 26, 2014, Illinois Governor Pat Quinn signed House Bill 8, amending the Illinois Human Rights Act by placing new obligations on employers with respect to pregnant employees. The new changes take effect on January 1, 2015.

The Illinois Human Rights Act has long-standing prohibitions on employment discrimination "on the basis of pregnancy."1 House Bill 8 now requires employers to provide reasonable accommodations to pregnant employees.

Reasonable Accommodations

House Bill 8 requires employers to provide reasonable accommodations to women on account of pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth. Essentially, for reasonable accommodation purposes, employers must treat pregnancy and pregnancy-related conditions "like a disability." An employer must provide a requested reasonable accommodation to a pregnant applicant or employee (full-time, part-time or probationary), absent a showing of undue hardship.

House Bill 8 provides a nonexclusive list of reasonable accommodations, which include the following:

  • more frequent or longer rest breaks
  • private non-bathroom space for breastfeeding and related activities such as pumping milk
  • reasonable seating
  • acquisition or modification of equipment
  • assistance with manual labor
  • light duty
  • temporary transfer to a less strenuous or hazardous position
  • reassignment to a vacant position
  • the provision of an accessible worksite
  • job restructuring
  • a part-time modified work schedule
  • appropriate adjustment or modifications of examinations, training materials or policies
  • time off to recover from conditions related to childbirth
  • leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth

If leave is afforded as a form of reasonable accommodation, the employee must be reinstated to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits upon signifying her intent to return or when her need for reasonable accommodation ceases. This would suggest that an employee could be entitled to a leave lasting in excess of what she would be entitled to under the Family and Medical Leave Act (FMLA), assuming the employee was otherwise eligible for FMLA leave. The burden would then be on the employer to demonstrate that such an extended leave would constitute an undue hardship.

An employer may request documentation from the pregnant employee's healthcare provider regarding the need for a requested accommodation. Employers are required to engage in an interactive process with the employee, namely, to have a "timely, good faith, and meaningful exchange" with the employee regarding the proposed accommodations. Employers may not require pregnant employees to accept a proposed accommodation (including a forced leave of absence) or deny opportunities to pregnant employees based on their need for accommodations. However, an employer is not required to create a new position solely to accommodate a pregnant employee.

Notice

House Bill 8 requires employers to post a notice of the rights of pregnant employees at the workplace and/or provide a notice in its employee handbook. The Illinois Department of Human Rights is charged with crafting the required notice and likely will craft regulations regarding the ambiguities in the law about the notice, such as whether an employer must provide notice in its handbook if it posts the notice on a bulletin board.

The Illinois Department of Human Rights will be required to clarify the notice requirements in its forthcoming regulations.

 Notes

1 See 775 ILCS 5/2-102(I): http://www.ilga.gov/legislation/ilcs/ilcs5.asp

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

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