Illinois to Require Reasonable Accommodations for Pregnant Workers

Author: Beth P. Zoller, XpertHR Legal Editor

September 2, 2014

Starting January 1, 2015, Illinois employers will be required to provide pregnant employees reasonable accommodations such as longer bathroom breaks, specialized seating and even temporary transfer to a less-hazardous position. Illinois employers should update their policies and practices, and train supervisors and employees on the new requirements.

Under an amendment to the Illinois Human Rights Act, a reasonable accommodation is defined as a reasonable modification or adjustment to the job application process or work environment or the manner or circumstances under which a job is performed that would enable an employee or applicant affected by pregnancy, childbirth or related conditions to perform the essential functions of the job. Examples of reasonable accommodations include:

• More frequent or longer bathroom breaks, water breaks or rest breaks;
• Private non-bathroom space for breastfeeding or expressing breast milk;
• Specialized seating;
• Assistance with manual labor;
• Light duty;
• Temporary transfer to a less-strenuous or less-hazardous position;
• Provision of an accessible worksite;
• Acquisition or modification of equipment;
• Job restructuring;
• Part-time or modified work schedule;
• Adjustment or modifications of examinations, training materials or policies;
• Reassignment to a vacant position;
• Time off to recover from conditions related to childbirth; and
• Leave necessitated by pregnancy, childbirth or related conditions.

Employers will be required to afford pregnant employees or applicants the same treatment as other individuals who are similar in their ability or inability to work by reason of a disability.

In response to a request for a reasonable accommodation, an employer will be required engage in a timely, good faith and meaningful exchange to determine the effective reasonable accommodation, otherwise known as the interactive process. As part of this process, an employer may request documentation from the employee's healthcare provider regarding the need for a requested accommodation, why it is medically advisable and the probable duration of the reasonable accommodation.

Also under the new law, an employer must not:

• Take adverse action against an employee or applicant because she has requested an accommodation;
• Compel an employee or applicant to accept an accommodation the employee or applicant did not request and the individual chooses not to accept;
• Compel an employee to take leave if another reasonable accommodation can be provided; or
• Fail to reinstate an employee to her original job or an equivalent position when the need for a reasonable accommodation ends.

Employers will be required to provide reasonable accommodations to pregnant employees and applicants unless the employer can demonstrate that the requested accommodation would impose an undue hardship on the employer's business operations. Undue hardship is defined in the amended law as an action that is prohibitively expensive or disruptive in light of the following:

• The nature and cost of the accommodation needed;
• The overall financial resources of the facility involved (e.g., the number of persons employed and the effect on expenses and resources);
• The overall financial resources of the employer (e.g., the size of the business; the number of employees; the number, type and location of facilities); and
• The type of operations of the employer (e.g., the composition, structure and function of the workforce; the geographic separateness or administrative or fiscal relationship of the facility involved to the employer).

The new law does not require an employer to create a new position solely to accommodate a pregnant employee, discharge an employee, transfer an employee with greater seniority or promote an employee who is not qualified for a position unless the employer does so to accommodate other employees in need of accommodation.

However, it will require employers to provide notice in a conspicuous location on the employer's premises where notices are posted, and include in an employee handbook the information summarizing the new law's requirements and the right of pregnant workers to receive accommodations.

Employers should note that this law is part of a trend at the state and local level to expand the rights of pregnant workers and require employers to provide them with reasonable accommodations. For example, New Jersey, Philadelphia and New York City recently passed such measures. Because this is a rapidly developing area of the law, employers should be aware of the developments in their own state(s) as well as at the federal level.