by John E. Motylinski (Spring 2016)
On January 1, 2015, the Illinois Pregnancy Accommodation Act (“IPAA”) took effect, making it a violation of the Illinois Human Rights Act for an employer to discriminate against an employee or an applicant on the basis of pregnancy. On November 4, 2015, the Illinois Department of Human Rights (“IDHR”) adopted new regulations that further define Illinois employers’ duties and responsibilities under the IPAA. Correspondingly, Illinois has placed heightened obligations on all employers. However, due to the nature of the Act, compliance with the new law may be tricky. The following offers an explanation of the IPAA, its new regulations, and how the Act will affect employers moving forward.
What is the IPAA in a nutshell?
The IPAA requires all Illinois employers — including local governments — to provide reasonable accommodations to employees and job applicants for pregnancy and related conditions, as long as doing so does not impose an undue hardship on the employer.
What employers are affected by IPAA?
The IPAA applies to all employers that employ one (1) or more employees. This includes municipalities and local governments.
What employees are covered by IPAA?
By its own terms, the IPAA protects part-time employees, full-time employees, probationary employees, and job applicants who are pregnant, who have recently given birth, or who have a medical condition or other condition related to their pregnancy.
What is considered a “reasonable accommodation”?
The IPAA defines the term “reasonable accommodation” as modifications or adjustments to the job application process, work environment, or circumstances under which a job is customarily performed. The burden is on the employee to make a request for a “reasonable accommodation.” After such a request, employers and employees are required to engage in a timely, good faith, and meaningful dialogue to determine what a “reasonable accommodation” will mean given the circumstances.
Examples of the types of “reasonable accommodations” include (but are not limited to): more frequent or longer bathroom breaks, breaks for increased water intake, breaks for periodic rests, private non-bathroom space for expressing breast milk and breastfeeding, light duty, temporary transfer to a less strenuous or hazardous position, job restructuring, a part-time or modified work schedule, time off to recover from pregnancy, and other leaves necessitated by pregnancy.
What is an “undue hardship”?
Not all accommodations are “reasonable” under the IPAA. In fact, some accommodations may cause excessive harm to employers if implemented. Illinois lawmakers were sensitive to this problem in creating the IPAA. Therefore, if an employer can show that granting an accommodation would impose an undue hardship on the ordinary operation of the employer’s business, the employer need not offer the accommodation.
According to the IDHR and the IPAA, whether a requested accommodation is an undue hardship can be found by weighing a variety of factors, including:
- The nature and cost of the requested accommodation;
- The overall impact of the accommodation upon the operation of the workplace;
- The overall financial resources of the employer with respect to the number of its employees, and the number, type, and location of its facilities; and
- The type of operation or operations of the employer.
While this multi-factor test is not especially illuminating, the IPAA specifically lists some accommodations that are not reasonable. For instance, employers are not required to discharge, transfer, or promote other employees to make an accommodation. Furthermore, employers are not required to create additional employment that the employer would not otherwise have created.
Are employers required to reinstate employees affected by pregnancy?
Yes. Unless the employer can show that doing so would impose an undue hardship, the IPAA mandates employers to reinstate employees that have been on leave due to pregnancy or childbirth.
Can an employer request certifications from health care providers?
Yes, employers can require an employee to provide a certification of their condition from health care providers to the same extent certification is required for other disabilities. However, the information allowed in these medical certifications by the IPAA is limited to the medical justifications for a requested accommodation, a description of medically advisable accommodations, the date an accommodation should go into effect, and the probable length of time that an accommodation will be needed.
Does the IPAA impose new posting and notice requirements?
Yes, the IPAA directs employers to post a notice prepared by the IDHR that summarizes the IPAA and provides information on filing a charge with the Department. The IDHR has made this notice available on its website. Moreover, the information contained in this notice must be placed in employee handbooks.
What do I do if I have questions about the IPAA?
The IPAA is a very new and exceedingly broad statute that will likely be subject to change as it is interpreted by the IDHR and the judiciary. Therefore, if you have any questions about the IPAA, please contact an Ottosen Britz attorney.