The Illinois legislature amended the Human Rights Act to require employers to accommodate pregnant employees. “Pregnancy” includes pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.
Note that the new provisions regulate the smallest employers, including any person employing one or more employees.
It is illegal for an employer to discriminate with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of pregnancy, childbirth, or related medical or common conditions related to pregnancy or childbirth. Women affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth must be treated the same for all employment-related purposes, including fringe benefit programs, as other persons not so affected.
If a job applicant or employee, including a part-time, full-time, or probationary employee, requests a reasonable accommodation, the employer must provide reasonable accommodation unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business.
“Reasonable accommodations” include reasonable modifications to the job application process or work environment, or to the manner or circumstances under which the position desired or held is customarily performed, and may include: 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.
The employer may request documentation from the employee’s health care provider concerning reasonable accommodation if the employer’s request is job-related and consistent with business necessity. The employer may require only the medical justification and a description of the reasonable accommodation medically advisable, the date the accommodation became medically advisable, and the probable duration of the accommodation.
The individual seeking a reasonable accommodation must give the employer the requested documentation. The employer may also require documentation by the employee’s health care provider to determine compliance with other laws. The employee and employer must engage in a good faith exchange to determine effective reasonable accommodations.
An employer cannot require a job applicant or employee, affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to accept an accommodation when the applicant or employee did not request an accommodation.
An employer may not require an employee to take leave under any leave law or employer policy if another reasonable accommodation can be provided. An employer must reinstate an employee to her original job or to a position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits upon her signifying her intent to return or when her need for reasonable accommodation ceases, unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer.
The employer has the burden of proving undue hardship. The fact that the employer provides or would be required to provide a similar accommodation to similarly situated non-pregnant employees creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.
No employer must create additional employment that the employer would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodation. The employer need not discharge or 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.
An employer must post, and include in the employee handbook, information concerning rights under these new provisions.
Finally, an employer cannot retaliate against a person because he or she has opposed unlawful discrimination, or for making a charge, filing a complaint, or participated in an investigation, or hearing under the Act, or because he or she requested, or used, a reasonable accommodation under the Act. The new provisions are effective January 1, 2015.
· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311