Mandated Pregnancy Accommodations in Illinois: 4 Things Employers Need To Know About Imminent Changes to the Human Rights Act

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Update (9/10/2014):

As anticipated, the Pregnancy Fairness Bill unanimously passed in the Illinois Senate and was signed into law by Governor Quinn on August 26, 2014. The changes to Sections 1-102, 1-103, 2-101, 2-102, and 6-101 of the Illinois Human Rights Act will become effective on January 1, 2015. Significantly, these changes make it illegal to refuse to provide pregnant employees with “reasonable accommodations,” such as light duty, physical work site modification, and additional or extended breaks, unless it would impose an “undue hardship” on the employer’s ordinary business operations. For a further discussion on how to prepare for the implementation of the provisions of the Pregnancy Fairness Bill, please see the original post below.

Additionally, in the wake of the passage of similar laws in several other states, the E.E.O.C. recently clarified that refusing to provide reasonable accommodations to pregnant employees is also illegal under federal law. The E.E.O.C. issued an Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14, 2014, which includes a discussion of best practices and specifically addresses how an employer should handle requests for reasonable accommodations. The full text of the Enforcement Guidance is available here.  For additional information about the current state of the federal laws under the Pregnancy Discrimination Act and Americans with Disabilities Act, please also see the E.E.O.C. factsheet.

Your employee has just let you know that she is pregnant and is now rattling off her list of demands to allow her to keep working up until her maternity leave. Although previously you could have legally told your employee “tough luck,” the Illinois legislature is now saying “not so fast.”Under proposed amendments to the Illinois Human Rights Act, known as the “Pregnancy Fairness Bill,” your failure to accommodate your pregnant employee’s requests could soon leave you saddled with a discrimination lawsuit. But, just how far do pregnancy accommodations have to go, and what exactly will be prohibited? Although it could be some time before these questions are fully answered, here is an overview of what to expect:

1) Who is entitled to pregnancy accommodations?

  • Job applicants, probationary, part-time and full-time employees who are pregnant or returning to the workforce after childbirth.

Some of the industries where pregnancy accommodations are expected to have the greatest impact are those where employees engage in sustained physical activity, such as retail sales, food service and deliveries.

[box] Illinois is likely to soon join the growing number of states that require employers to make reasonable accommodations for pregnant employees. Amendments to the Illinois Human Rights Act, known as the “Pregnancy Fairness Bill” have passed the House and moved on to the Senate under the sponsorship of Senate President John J. Cullerton. A vote in favor of the bill is expected before the current assembly is adjourned at the end of May of 2014.[/box]

2) When must accommodations be provided?

  • When requested by the employee;
  • When agreed upon by you and your employee.

The proposed amendments fail to clarify whether the employee’s request for accommodations must be in writing, but any oral requests should be well-documented to avoid any claims of discrimination prior to the time that you were on notice of the employee’s pregnancy. Until further guidance is available, it may be useful to incorporate forms similar to those used for disability accommodations to initiate pregnancy and/or childbirth accommodation requests as a matter of company policy and procedure.

It is important to note that you may not force an employee to accept proposed accommodations or take leave against her wishes. Rather, if an employee fails to request or accept accommodations, you cannot treat her any differently than any other employee. In fact, doing so would trigger other existing laws, such as the Pregnancy Discrimination Act, of 1978, 42 U.S.C. § 2000e(k).

[box] For the most part, pregnancy accommodations are not currently required under federal law. However, the Equal Employment Opportunity Commission has designated these additional protections as one of its priorities in its latest four-year Strategic Enforcement Plan. As a result, pregnancy accommodations at the federal level also seem inevitable, and the future statutory scheme is expected to largely mirror that under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.[/box]

3) What type of accommodations must be provided?

  • “Reasonable accommodations,” meaning modifications to the work environment or manner in which work is performed in order to allow employees affected by pregnancy or childbirth to perform the essential functions of their positions, such as:
    • Additional and/or extended bathroom breaks;
    • Periodic rest or water breaks;
    • Seating or similar physical work site or equipment modifications;
    • Assistance to cover any lifting or manual labor restrictions;
    • Light duty or a modified work schedule;
    • A temporary transfer to a less strenuous or hazardous position;
    • Time off to recover from childbirth; and,
    • Private space for breastfeeding or expressing breast milk.

Whether specific accommodations are “reasonable” will vary for different individuals, different jobs and different work site conditions. Although specific accommodations should be evaluated under a broad and flexible framework, you should maintain some consistency in which accommodations are provided to your employees to avoid an inference of disparate treatment.

4) What are the limitations?

The current version of the “Pregnancy Fairness Bill” provides employers with some safeguards to ensure that the requested accommodations are necessary and appropriate:

  • Employers can ask for medical documentation from the employee to determine whether the requested accommodations have a medical justification, what the employee’s physician’s medically advisable accommodations would be, when the accommodations will need to be placed in effect, and for how long.
  • Despite a physician’s recommendations, an accommodation need not be provided where it would place an “undue hardship” on the employer. The most common examples of undue hardship are that the accommodation is extremely expensive or disruptive to ordinary business, customers or other employees. The employer will bear the burden of showing that the accommodation will cause “undue hardship,” and factors to consider are the nature of the business, the number of other employees, the costs of the accommodation, and the difficulty in implementing the accommodation.
  •  Employers also need not provide accommodations of a personal nature or excessive accommodations, such as creating a new position, hiring two employees to do the job of one, transferring another employee with greater seniority, or promoting an unqualified employee due to their pregnant or childbearing condition. In other words, the accommodation is not intended to provide special treatment or preference, but merely should place the pregnant applicant or employee on equal footing with non-pregnant employees in order to complete essential job functions despite their condition.

In the event that accommodations are denied, the reasons for the denial should be well-documented to support the defense of any future discrimination claim.  Similarly, efforts to come up with agreed upon workplace or work duty accommodations should be well-documented in the event that the employee fails to act in good faith to reach a compromise. Accommodations should be made both in the best interests of an employee’s health and your business, and courts are likely to weigh in on where the lines should be drawn soon after the changes set forth in the “Pregnancy Fairness Bill” take effect.  In the meantime, getting a jump start on revising your workplace policies to accommodate employees affected by pregnancy or childbirth can allow you to better plan for future required modifications.

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As an overview, the proposed amendments to Section 2-102 of the Illinois Human Rights Act would create new civil rights violations for:

(1) failing to make requested reasonable accommodations for a job applicant or employee for any condition related to pregnancy or childbirth so long as the accommodation does not impose an undue hardship on the employer;

(2) denying employment to a job applicant or take any other adverse action against an employee based on the need to create reasonable accommodations on account of pregnancy or childbirth;

(3) forcing an employee to accept accommodations against her wishes; or,

(4) forcing an employee to take leave if other accommodations could be provided, and/or to fail to reinstate an employee to her original or equivalent position, with equivalent pay and accumulated seniority and benefits, once the need for accommodations ceases and the employee indicates that she intends to return from leave or light duty.

Employers would also be expressly prohibited from retaliating against an employee due to pregnancy, childbirth or conditions related to pregnancy and childbirth.

To follow the status of the Pregnancy Fairness Bill, click here.

Watch for future rules and regulations, and learn more from the Illinois Department of Human Rights here.[/box]

Image by Matthew Rutledge licensed under CC BY 2.0
References:
  1. H.B. 0008, 98th Gen. Ass. (Ill. 2014)
  2. “House Bill 8 Fact Sheet,” American Civil Liberties Union of Illinois, http://www.aclu-il.org/wp-content/uploads/2014/02/House-Bill-8-Fact-Sheet-4.4.2014.pdf, last accessed Apr. 28, 2014.
  3. Serednyj v. Beverly Healthcare, LLC, 656 F. 3d 540, 548 (7th Cir. 2011) (“The [Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)] requires that an employer ignore a female employee’s pregnancy and treat that employee the same as it would have if she were not pregnant…this means that an employer is not required to provide an accommodation to a pregnant employee unless it provides the same accommodation to its similarly situated nonpregnant employees”) (internal citations omitted).
  4. http://www.eeoc.gov/eeoc/plan/sep.cfm
  5. “Request for Reasonable Accommodation,” State of Illinois Department of Human Services, http://www.dhs.state.il.us/onenetlibrary/12/documents/Forms/IL444-4231.pdf, last accessed Apr. 28, 2014.