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New Pregnancy Discrimination and Accommodation Amendments to the Illinois Human Rights Act

Effective January 1, 2015 the pregnancy discrimination and accommodation amendments to the Illinois Human Rights Act (IHRA) became law, requiring many employers in the state to update or change their policies with respect to expecting and new mothers in the workplace.

Coverage Highlights: All private, non-religious employers in Illinois, regardless of the number of employees, are covered by the pregnancy amendments to the IHRA. The amendments to the IHRA establish, for the first time, pregnancy as a legally-protected class and define the term "pregnancy" broadly to include: "pregnancy, childbirth, or medical or common conditions related to pregnancy and childbirth." Accordingly, the amendments apply to employees and applicants who are expecting and who recently gave birth.

Prohibitions and Requirements: The IHRA amendments prohibit adverse employment actions employees because of their pregnancy, childbirth or pregnancy-related conditions. The amendments also impose upon employers an affirmative obligation to offer reasonable accommodations for pregnancy and childbirth-related conditions. Such accommodations (as specifically referenced in the amendments) include:

• more frequent or longer bathroom breaks

• breaks for increased water intake and periodic rest

• a private non-bathroom space for breastfeeding and expressing milk

• seating

• assistance with manual labor

• light duty

• temporary transfers to less strenuous or hazardous positions

• accessible worksites

• the acquisition or modification of equipment

• job restructuring

• part-time or modified work schedules

• appropriate adjustments or modifications of examinations, training materials or policies

• a reassignment to a vacant position

• time off to recover from childbirth and leave required by the employee's pregnancy, childbirth, or related conditions

Importantly, an employer may not force a protected employee to accept an accommodation that she did not request or to which she did not agree, nor may it force the employee to take leave if another reasonable accommodation can be provided.

If the employer demonstrates that the accommodation would impose an undue hardship on the "ordinary operation of the business of the employer," then the employer may deny the requested accommodation. Under the IHRA amendments, "undue hardship" is defined as "prohibitively expensive or disruptive." The amendments also state that employers are not required to create addition al employment positions that the employer otherwise would not have created, unless the employer does so or would have done so for other classes of employees who needed accommodations. Interestingly, this last section specifically addresses disparate treatment between pregnant employees and other classes of workers who are offered accommodations, which is the issue presented in Young v. United Parcel Service, Inc. currently awaiting decision from the U.S. Supreme Court.

Like the interactive process required under the Americans With Disabilities Act, the IHRA amendments also require both employees and employers to engage in a "timely, good faith, and meaningful exchange to determine effective reasonable accommodations."

Medical Certification: The employer may request documentation from the employee's health care provider concerning the need for the requested accommodation to the same extent documentation is requested for conditions related to disability, so long as the employer's request for documentation is job-related and consistent with business necessity. The scope of the employer's documentation request is limited to the following:

• the medical justification for the requested accommodation(s),

• a description of the reasonable accommodation(s) that are medically advisable,

• the date the reasonable accommodation(s) became medically advisable, and

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

Notice and Posting Requirements: The IHRA amendments require employers to post in a conspicuous location, and include in any employee handbook that the employer maintains, a notice prepared by the Illinois Department of Human Rights summarizing the requirements of the new pregnancy laws and providing information regarding filing a charge with the Department. The aforementioned notice is available on the Illinois Department of Human Rights website (https://www2.illinois.gov/dhr/Pages/default.aspx).

Retaliation, Reinstatement and Remedies: The IHRA amendments contain a specific provision prohibiting retaliation. Such provision states that Illinois employers may not terminate or take other adverse job action against employees in retaliation for requesting reasonable accommodation, otherwise exercising their rights, or complaining about the violation of their rights.

A particularly noteworthy provision in the new amendments is the section providing pregnant employees with job restoration rights. Absent a showing of undue hardship by the employer, an employee who has been affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth must be reinstated to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable serve credits upon her signifying her intent to return or when the need for reasonable accommodation ceases.

The IHRA amendments provide for the same legal and equitable remedies available under the IHRA including, but not limited to: back pay, lost wages, compensatory damages for emotional distress, reasonable attorneys' fees, litigation costs and reinstatement of employment.

In general, the IHRA amendments track the protections afforded to pregnant applicants and employees under the Pregnancy Discrimination Act (PDA) and the Americans With Disabilities Act (ADA), as amended by the Americans With Disabilities Amendments Act (ADAAA). However, most courts have not interpreted the PDA or ADA as imposing upon employers an affirmative duty to provide accommodations to pregnant workers who are temporarily disabled due to a "normal" pregnancy since a "normal" pregnancy is not considered an "impairment" under the ADA. However, it is clear that the IHRA amendments do, in fact, require Illinois employers to provide accommodations to pregnant workers, including accommodations afforded to other temporarily disabled employees - representing a significant expansion of the protections afforded to pregnant employees in Illinois.

It should also be noted that Illinois already has a separate statute - the Nursing Mothers in the Workplace Act 820 ILCS 260/1 - that requires employers (no matter the size or number of employees) to provide employees with "reasonable unpaid break time" each day to express milk (unless doing so would unduly disrupt business operations) and such break time must run concurrently with any break time already provided to the employee. That act also requires employers to provide a private room, not just a toilet stall, to nursing mothers so that they can express milk in privacy.

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