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Pregnant worker law could be concern for smaller businesses

    A new Illinois law mandating “reasonable accommodations” for pregnant employees is likely to be tested in court after it takes effect the first of the year, attorneys say.
    But any legal complications won’t delay workplaces from adhering to the new Illinois Pregnancy Fairness Law, which some say is broad and could pose a burden for smaller businesses.
    Mark Schuver, an attorney and shareholder at Mathis Marifian & Richter in Belleville, says the law, passed as House Bill 8, amends the Illinois Human Rights Act to include what he calls some of the most expansive protections for pregnant employees in the country. The act will prohibit all forms of discrimination against pregnant employees and will impose obligations on employers, regardless of the size of the business or number of employees.
    “Some people may be surprised that there really wasn’t something out there before, but there really wasn’t,” Schuver said. “Previously there was no law that required employers to give employees a maternity leave. It’s somewhat vague but this appears to say that employers of all sizes, no matter how big or small, have to reasonably accommodate anyone who becomes pregnant, for anything having to do with the pregnancy. That is brand new. Only a handful of states have done this so far, so Illinois is on the cutting edge of all of this.”
    The bill was introduced in the Illinois General Assembly by state Sen. Toi Hutchinson, D-Chicago Heights, who deemed it a family protective measure.
    The law will require employers to reasonably accommodate pregnant women in the workplace, as long as it would not create an undue hardship on a business to do so. An employer is in violation of the new law if the pregnant woman is forced to take an unpaid leave of absence when another workplace accommodation would be feasible, or if a potential employer refuses to hire a qualified applicant because of accommodation requirements.
    “Unfortunately, many women in this country still face unpaid maternity leave, which forces them to forego needed income right when another child adds to the family budget,” Hutchinson said in a statement. “For women with healthy pregnancies who need to work as long as possible, this law is crucial to their ability to stop having to choose between their jobs and their ability to provide for their families.”
    There is, however, vagueness, about HB 8 that troubles lawyers.
    “I suspect there’s going to have to be a lot of litigation to flesh the whole thing out,” Schuver said, noting that the same thing has happened to many laws with business implications, from the Americans with Disabilities Act to the Family and Medical Leave Act.
    He said businesses are going to have to do a self analysis to see where the Illinois law might affect them. For example, do they have the ability to give pregnant workers time off? Or modify their work space? Or allow them to work from home?
    The situation will be different at every business, Schuver said. Yet, for all of that he’s getting few questions about the new law.
    “Nobody seems to know about it. I wrote an article about it for our website. I’ve been telling my clients, but most people don’t seem to be aware of it,” he said.
    Amy Blaisdell, leader of the Labor and Employment Group at Greensfelder, Hemker & Gale, P.C., said the ADA requires firms of 15 or more workers to give accommodations for pregnancies that rise to the level of a disability under the Americans with Disabilities Amendment Act.
    On the other hand, the ADA also says that a routine, noncomplicated pregnancy is not a disability under the law.
    The U.S. Equal Employment Opportunity Commission, in July, for the first time in 30 years updated its guidance under the Pregnancy Discrimination Act. The EEOC is taking the position that pregnant workers should be granted the same accommodations that are provided to other workers who are similar in their ability or inability to work, Blaisdell said. So, for example, it is the EEOC’s position that if a company provides light duty work to employees who suffer workers’ compensation injuries, then they must likewise provide light duty to pregnant workers, even if they do not have a disability.
    The U.S. Supreme Court will determine federal law some time next year when it rules in the Young vs. UPS case, answering the question of whether the Pregnancy Discrimination Act requires accommodations of pregnant individuals.
    “Even if the Supreme Court rules that under federal law you do not have to provide accommodations to pregnant individuals who have a routine, uncomplicated pregnancy, that is not going to change the Illinois law. The Illinois law was passed as an amendment to the Illinois Human Rights Act, so Illinois employees will still be able to sue employers who are not in compliance under state law,” Blaisdell said.
    The Pregnancy Discrimination Act was created as a 1978 amendment to Title VII of the Civil Rights Act of 1964, basically saying to employers that you can’t treat a pregnant person differently than a nonpregnant person, and that if you provide for one, you have to provide for the other.
    “Time off, say for an illness or injury. But, again, nothing requiring any pay,” Schuver said.
    The federal Pregnancy Discrimination Act applies to workplaces with 15 or more employees, he added.
    The federal Family Leave Act by comparison, applies to workplaces with 50 or more employees and affords up to 12 weeks leave for both men and women.
    The new Illinois law has no upper limit on time off granted for accommodations.
    Illinois employers, as of the first of the year, will be required to properly inform employees of their rights under HB 8 through an internal memo or revisions to the employee handbook.
    Todd Sivia, managing partner of Edwardsville-based Sivia Business & Legal Services, P.C., said businesses should prepare now to guarantee compliance by the first of the year.
    “These requirements can be confusing and overwhelming,” says Sivia. “We caution business owners not to maneuver these regulations alone. Our experienced business attorneys understand these laws and can clearly explain how your business will be effected, and what businesses must do to guarantee full legal compliance.”
    The Illinois Federation of Teachers, ACLU, Illinois National Organization for Women and the Chicago Jobs Council were among many groups and organizations that supported the new law.

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