Accommodations for expectant mothers: Not just expected
Providing appropriate accommodations to pregnant employees and applicants is not just a "nice to have" on the checklist of employees' wish lists. It's the law. In early 2015, the Illinois Human Rights Act (IHRA) even expanded protection to expectant mothers during pregnancy and for common conditions related to pregnancy and childbirth. Take a moment to review your company's compliance with pregnant employee and applicant regulations.
Employers must provide reasonable accommodations to job applicants and employees for any medical or common condition related to pregnancy or childbirth. It is unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting accommodations. These requirements cover all Illinois employers of one or more employees and applies to all job applicants or employees, part-time, full time or probationary, who request an accommodation in relation to their pregnancy.
The IHRA provides several examples of the types of reasonable accommodations employers can make for covered employees or applicants such as: limits on heavy lifting, assistance with manual labor, light duty, temporary transfers to less strenuous or hazardous positions, access to places to sit, more frequent restroom breaks, time-off to recover from childbirth, leave required by the employee's pregnancy, childbirth or related conditions, and private break space for breast-feeding and expressing breast milk. The burden is on the applicant or employee to make the request for an accommodation.
An employer is not required to provide a certain accommodation if it can demonstrate that the accommodation would impose an undue hardship on the "ordinary business of the employer." Therefore, an employer is not required to create new employment opportunities for pregnant women, discharge or transfer another employee, or promote an unqualified employee unless it does so for other employees who request accommodations.
The factors to be considered in evaluating whether a requested accommodation poses an undue hardship include: (1) the nature and cost of the accommodation; (2) the overall financial resources of, the number of persons employed at, the effect on expenses and resources of and other impacts on the operations of the facility involved; (3) the overall financial resources, the overall number of employees, and the number, type and location of the facilities of the employer involved; and (4) the type of operations of the employer including the composition, structure and function of the workforce of the employer, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. An employer must reinstate an employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position, unless the employer can demonstrate that doing so would impose an undue hardship.
Employers may require an applicant or employee to provide certification from her health care provider concerning the need for the requested reasonable accommodation to the same extent a certification is required for other conditions related to a disability. Similar to the process for accommodating a disability under the Americans with Disabilities Act, the new law requires the parties to engage in a good faith interactive discussion about potential accommodations. The employer may only require the following to include in a medical certification: (1) the medical justification for the requested accommodation; (2) a description of the reasonable accommodation medically advisable; (3) the date the accommodation became advisable; and (4) the probable duration of the reasonable accommodation. The burden to produce the requested documentation rests with the applicant or employee.
Under the new law, an employer cannot require an applicant or employee to accept an accommodation when it was not requested, nor may the employer force the employee to take a leave when another reasonable accommodation is available. The law prohibits retaliation against an applicant or employee because she requested or was provided a reasonable accommodation.
Employers with locations in Illinois should thoroughly review their policies on reasonable accommodation and pregnancy related leave to ensure compliance. Employers with locations outside of Illinois also should become familiar with the state and local laws applicable to their area and update practices and policies in those locations, as needed.
• This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.