p08 blaisdellBlaisdell    Effective Jan. 1, 2015, the Illinois Pregnancy Fairness Law amends the Illinois Human Rights Act to provide workplace protections to all expectant mothers, regardless of their employer’s size.
    The law amends the IHRA, adding “pregnancy” as a protected class under state law. “Pregnancy” is defined broadly to mean “pregnancy, childbirth, or other medical or common conditions related to pregnancy or childbirth.” Thus, effective Jan . 1, the IHRA prohibits discrimination on the basis of “pregnancy” against applicants and employees and also requires employers to provide accommodations to expectant mothers to enable them to perform the job held or sought unless the employer can establishing that doing so would cause an undue hardship on the ordinary operation of the business. The Illinois law also prohibits retaliation against individuals who exercise their right to an accommodation under the law.
    
Differences between Illinois law and federal law
    The new Illinois law applies to all employers regardless of size and not only prohibits them from discriminating against any woman coming within the broad definition of pregnancy, but also requires employers to provide accommodations to expectant mothers that are needed to perform the job held by an employee or sought by an applicant, unless the employer can establish that doing so would pose an undue hardship.
    In contrast, the federal Pregnancy Discrimination Act is part of Title VII of the Civil Rights Act of 1964, and only applies to employers with 15 or more employers. In addition, it is not yet clear that the PDA requires workplace accommodations for pregnant women who do not have a condition that would constitute a disability under the Americans with Disabilities Act Amendments Act of 2008. Although the U.S. Equal Employment Opportunity Commission issued guidance on July 14, 2014, opining that the PDA does require an employer to provide reasonable accommodations to all expectant mothers, this issue will actually be decided by the U.S. Supreme Court in Young v. UPS. Oral arguments are scheduled this month.
    
Which employees are protected by the law?
    The law applies to all women who meet the broad definition of pregnancy regardless of whether they work full or part-time. In addition, the accommodation requirement applies to any woman experiencing “pregnancy, childbirth, or other medical conditions related to pregnancy or childbirth.” It is unclear whether the law would extend protection to a woman who is not yet pregnant but who has a medical condition that impacts her ability to conceive.
    
What is a reasonable accommodation in Illinois?
    Reasonable accommodation is defined by the law to mean “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.”
    Among the non-exclusive list of reasonable accommodations are:
    - 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; and temporary transfer to a less strenuous or hazardous position
    - The provision of an accessible worksite; and the acquisition or modification of equipment;
    - Job restructuring; a part-time or modified work schedule; or the reassignment to a vacant position;
    - Appropriate adjustment or modifications of examinations, training materials or policies;
    - Time off to recover from conditions related to childbirth; and
    - Leave necessitated by pregnancy and childbirth and conditions resulting from them.
    
What is not required by the new Illinois law?
    The new Illinois law does not require an employer to create a job, unless the employer would do so for other classes of employees who need accommodations. In addition, an employer is not required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job, unless the employer would do so to accommodate other classes of employees who need it. As a practical matter, an employer will have to ensure that it is treating pregnant workers the same as it treats any other workers to which it provides accommodations.
    
What does undue hardship mean?
    Undue hardship means an action that is prohibitively expensive or disruptive when considered in light of the following factors:
    - The nature and cost of the accommodation needed;
    - The overall financial resources of the facilities involved in the provision of the reasonable accommodation, the number of persons employed, the effect on expenses and resources, or the impact upon operations;
    - The overall financial resources of the employer, the overall size of the business with respect to the number of its employees, and the number, type and location of its facilities; and
    - The type of operations of the employer, including the composition, structure and functions of the workforce, the geographic separateness of facilities and more.
    The employer has the burden of proving undue hardship, and this is a very high threshold that will be extremely difficult, if not impossible for large employers, who are already subject to the Americans with Disabilities Act accommodation process. Under the Illinois law, the fact that an 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.
    
What information can an employer request?
    Employers are limited to obtaining certain information in support of a request for accommodations. Employers are permitted to request documentation from a treating health-care provider to the same extent that documentation is requested for individuals with disabilities, if the employer’s request for documentation is job-related and consistent with business necessity. However, employers may require that individuals requesting an accommodation provide the medical justification, description, date and probable duration of those accommodations.
    The law further requires the employee and employer to engage in a “timely, good faith, and meaningful exchange to determine effective reasonable accommodations.” Importantly, the law also prohibits an employer for imposing an accommodation on an employee that has not been requested or that has not been accepted by the employee.
    This provision has the potential to create significant issues for employers. One can easily envision a situation in which an expectant mother is rejecting accommodations that are actually sufficient to meet medical restrictions and reasonable to accommodate the worker. Yet, under the law, an employer will have to continue to engage in dialogue with the employee until the employee agrees to the accommodation.
    
Posting and publication equirements of the law
    It is a violation of the Illinois law if an employer fails to post or keep posted in a conspicuous location where notices to employees are customarily posted, or fail to include in any employee handbook information concerning an employee’s rights under the law. A notice of these rights is to be prepared or approved by the Department of Human Rights and available on the IDHR’s website.
    Amy L. Blaisdell is practice group leader of the Labor and Employment Group and an officer at Greensfelder, Hemker & Gale, P.C.