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Illinois Targets Mid-December for Issuing Required Employer Posting under Pregnancy Accommodations Law

Beginning January 1, 2015, the Illinois Human Rights Act (“IHRA”) will offer additional protections for pregnant women in the workplace and additional responsibilities for employers with respect to their pregnant workers. 

Employers must post information about the new protections in a conspicuous location and include that information in their employee handbooks, if any. The Illinois Department of Human Rights has made December 15, 2014, the target date for publication of the required documents on its website. Employers should monitor the Department’s website to ensure they are in compliance with the posting and handbook requirements when the law becomes effective on January 1.

Requirements

Under the new law, an employer must post in a conspicuous location, and include in any employee handbook that the employer maintains, a notice that will be prepared or approved by the Illinois Department of Human Rights summarizing the requirements of the new law and providing information relating to the filing of a charge with the Department, including the right to be free from discrimination and the right to certain reasonable accommodations. 

The new Illinois law (consistent with current federal law) adds pregnancy to the IHRA’s list of classes protected against discrimination. (The IHRA also covers race, color, religion, sex, national origin, among other characteristics.) It defines “pregnancy” as “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.” 

Different and arguably greater obligations on businesses are imposed under the Illinois law than under federal laws, such as the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), even after passage of the ADA Amendments Act (“ADAAA”).

The new law requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth and makes it unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting such accommodations. 

If an employer demonstrates the accommodation would impose an undue hardship on the “ordinary operation of the business of the employer,” however, the employer need not provide the requested accommodation. “Undue hardship” is an action that is “prohibitively expensive or disruptive.” 

The new law defines reasonable accommodations as modifications or adjustments to the job application process, work environment, or circumstances under which a position is customarily performed. It provides a non-exclusive list of examples of reasonable accommodations, including: 

  • More frequent or longer bathroom breaks; 

  • Breaks for increased water intake; 

  • Breaks for periodic rest; 

  • Private non-bathroom space for expressing breast milk and breastfeeding; 

  • Seating accommodations; 

  • Assistance with manual labor; 

  • Light duty; 

  • Temporary transfer to a less strenuous or non-hazardous position; 

  • Acquisition or modification of equipment; 

  • Job restructuring; 

  • Part-time or modified work schedule; 

  • Appropriate adjustment or modifications of examinations or training materials; 

  • Assignment to a vacant position; or 

  • Providing leave. 

The law specifies that employers are not required to create additional employment positions that the employer otherwise would not have created, unless the employer does so or would do so for other classes of employees who needed accommodations. Similar to the ADA, the new law mandates that both the employer and employee engage in a “timely, good faith, and meaningful exchange to determine effective reasonable accommodations.” 

The law prohibits employers from requiring that an employee or applicant accept an accommodation she did not request or from requiring that an employee or applicant accept the employer’s accommodation. 

Medical Certification

Under the new law, employers may require an employee to provide a certification from the employee’s health care provider concerning the need for the requested reasonable accommodation to the “same extent” a certification is required for other conditions related to a disability. However, the law then states that an employer may require only the following information be included in a medical certification: 

(1) the medical justification for the requested accommodation(s); 

(2) a description of the reasonable accommodation(s) medically advisable; 

(3) the date the accommodation(s) became advisable; and 

(4) the probable duration of the reasonable accommodation(s). 

Reinstatement

The new law requires employers to reinstate an employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position, unless the employer can demonstrate that doing so would impose an undue hardship. 

What Should Illinois Employers Do?

Employers should review their policies, practices, and contractual agreements with respect to alternative work arrangements and restricted/light duty programs. They also should avoid “workers’ compensation light duty-only programs.” 

Actions Illinois employers should consider taking to prepare include: 

  • Reviewing with counsel their policies on reasonable accommodation; 

  • Reconsidering their policies and practices about obtaining medical certification; 

  • Regularly checking the IDHR website for the new required poster/notice; 

  • Reviewing and revising any employee handbooks to ensure compliance with the new law’s handbook notice requirement; and

  • Training managers and supervisors on procedures for responding to accommodation requests from pregnant employees.

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 332

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About this Author

Hallie Diethelm Caldarone, Employment Law Attorney, Jackson Lewis Law Firm
Shareholder

Hallie Diethelm Caldarone is a Shareholder in the Chicago, Illinois office of Jackson Lewis P.C.

Ms. Caldarone is an experienced employment law litigator.  She has been based in Chicago her entire career and has extensive experience litigating all forms of employment matters throughout the Midwest in federal courts, state courts, and before administrative agencies.  Ms. Caldarone’s practice focuses on complex litigation, including class, collective, and hybrid actions. Since joining Jackson Lewis, she has been co-counsel in numerous class...

312-787-4949
Kathryn Moran, Employment Attorney, Jackson Lewis Law Firm
Principal

Kathryn Montgomery Moran is a Principal and the Office Litigation Manager of the Chicago, Illinois, office of Jackson Lewis P.C. She has extensive litigation experience in individual and class action cases in state and federal courts and administrative agencies.

When disputes cannot be resolved by agreement or dismissed on technical grounds, Ms. Moran tries cases before juries, judges, administrative law judges and arbitrators. She has successfully defended employers accused of the following: age, sex, race, disability and national origin discrimination, sexual harassment, retaliatory discharge, ERISA violations, Family and Medical Leave Act violations, defamation, fraud, tortious interference, infliction of emotional distress, breach of contract, and wage and hour violations.

Ms. Moran handles matters in state and federal courts around the country, the Equal Employment Opportunity Commission, the Illinois Human Rights Commission, and other government agencies.

312-787-4949
Paul Patten, Employment, Management, Attorney, Jackson Lewis Law Firm
Principal

Paul Patten is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. He represents management in employment cases in federal and state courts and before administrative agencies.

Mr. Patten’s practice focuses primarily on employment litigation and counseling. He represents employers in federal and state individual and class-based lawsuits covering a wide range of statutes and subjects, including federal and state anti-discrimination and wage and hour laws.

312-803-2570