Heyl Royster

Pregnancy Protections Under Illinois Law

may 18, 2015

By: Deb Stegall

Effective January 1, 2015, the Illinois Human Rights Act ("IHRA") was amended, by Public Act 98-1050, to include pregnancy as a protected class of individuals that may not be discriminated against by employers with one employee or more. These new rights and obligations must be understood and complied with by employers.

Under the IHRA, pregnancy is defined as more than simply pregnancy. It also includes childbirth or medical or common conditions related to pregnancy or childbirth. [Emphasis added] 775 ILCS 5/1-103 (L-5) This definition creates many situations that will have to be addressed by employers. It is not only being pregnant or childbirth. Those are easier. The common conditions related to pregnancy or childbirth will be more difficult to manage.

The IHRA now requires employers to reasonably accommodate employees or applicants who fall within the definition of pregnancy. The IHRA provides the following as examples of reasonable accommodations:

"…… means 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, and may include, but is not limited to: more frequent or longer bathroom breaks, breaks for increased water intake, and breaks for periodic rest; private non-bathroom space or 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." 775 ILCS 5/2-102(J).

The concerning language is "or common conditions related to pregnancy or childbirth." This language is broad and potentially an endless list of reasons an employee affected by pregnancy would need to be excused from work or have the workplace modified for them in some manner.

Similar to reasonable accommodations under the Americans with Disabilities Act, an employer must provide a reasonable accommodation, unless the employer can show that it would impose an undue hardship on the operation of the business. The definition of undue hardship means, "an action that is prohibitively expensive or disruptive when considered in light of the following factors:
(i) the nature and cost of the accommodation needed;
(ii) 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;
(iii) 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;
(iv) 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 in question to 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 employees creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer."

The amendment provides accommodations to pregnant employee and applicants that they may not have had otherwise. For example, if a newly hired employee needs a reasonable accommodation of only working four hours per day or only working three days per week, the employer must determine whether such an accommodation is reasonable and whether such an accommodation has or would have been made for a disabled applicant or employee or an employee with a workers' compensation injury under the same circumstances.

On the other hand, the IHRA prohibits employers from forcing an employee or applicant to accept an accommodation or take any leave, if they do not want it.

Public Act 98-1050 requires employers to post a notice and advise employees of their rights under the IHRA in the employee handbook. The poster and rights can be found on the Illinois Department of Human Rights website.

Employers should become familiar with the changes to the Illinois Human Right Act and bring itself into compliance, if it has not yet done so.

For more information on healthcare employment issues, please contact our Healthcare Practice Group.

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