A new Illinois law, one of the most protective nationwide, requires employers to provide a range of reasonable accommodations to pregnant woman and new mothers.

Last August, Illinois Governor Pat Quinn signed Public Act 98-1050 into law. The Act, effective January 1 and referred to as the Pregnancy Fairness law, represents a major change in protections for pregnant workers seeking employment or already in the workplace.

The Act amends the Illinois Human Rights Act to include pregnancy as a protected class. "Pregnancy" is defined as "pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth." 775 ILCS 5/1-103(L-5). As a result, the Act covers not only pregnancy and childbirth but also applies after the child is born.

The Act broadly prohibits discrimination in hiring and employment for pregnant workers and those affected by a medical or common condition related to pregnancy or childbirth. 775 ILCS 5/2-102(I). The Act also requires employers to provide a broad range of accommodations to pregnant employees where appropriate ("more frequent or longer bathroom breaks," "assistance with manual labor," etc.). An employer can refuse an accommodation if it can demonstrate that the accommodation presents an undue hardship on the ordinary operation of its business. 775 ILCS 5/2-102(J).

Job descriptions are important

Chicago-based labor law attorney Alisa B. Arnoff represents employers in her regular practice. She is a partner at Scalambrino & Arnoff, LLP, and is a past chair of the ISBA's Labor & Employment Law Section Council. She notes that the Act codifies practices that "good employers have been doing anyway."

The Act requires that employers obtain and post notices regarding the Act and employees' rights under it. Arnoff questions whether simply hanging a poster in the break room is adequate to comply with the Act.

She suggests that employers review their employee handbooks to make sure that they are updated to include notice about the Act's coverage. The notice should state that pregnancy is a protected class under the Act, specifically disclose that pregnant workers are entitled to reasonable accommodations, and state that those accommodations may vary by individual and from job to job.

The flexible nature of those accommodations are another reason why employers should have job descriptions in place for all positions, Arnoff says. A good job description will "define the essential and non-essential functions" of each position.

The Act has significant interplay with other employee rights, Arnoff notes. For example, under the Act, a reasonable accommodation for a pregnant employee may be to allow more than the required 12 weeks of leave under the Family Medical Leave Act. This represents a "radical departure" from the status quo, reaffirming "that 12 weeks is the floor, not the ceiling" for FMLA leave. Arnoff also mentions that under the Act, pregnancy-related health issues like gestational diabetes can trigger additional employer obligations under the Americans with Disabilities Act.

When a pregnant employee requests, and is offered, an accommodation by her employer, she is not required to accept it. If that happens, employers would be wise to get the employee's refusal in writing and document the entire exchange between the employer and the employee, Arnoff says. The Act does not create any explicit protections for employers when an employee refuses an accommodation.

Applicable to small employers

Chicago-based labor law attorney Lori Ecker represents employees in her regular practice. She agrees with Arnoff that the reasonable accommodation provisions of the Act are a "huge change."

The Act bridges a gap in coverage for Illinois workers because, for example, the FMLA only covers employers with 50 or more employees, says Ecker. Many small businesses in Illinois have been exempt from federal labor protection laws due to their size. The Act provides no such exception for smaller employers. Ecker expects to see litigation on this aspect of the Act in the future because it is a "big jolt" to the responsibilities of small and mid-size employers in Illinois.

This broad coverage is necessary to protect the interests of pregnant workers, Ecker says. In the past, employers were able to "decide that they know best for an employee," forcing women to take a leave of absence because they were unable to perform minor job tasks. The Act "tells employers that [the accommodation requirement] is an interactive process - not one that is forced on employees," says Ecker. She recognizes the need for an open process where employees and employers alike can discuss and assess occupational risks for a pregnant worker.

As for the Act's notice provisions, Ecker says that, in addition to posting notices for employees to read, employers should "regularly audit handbooks via outside labor counsel and make changes as needed." Providing adequate notice also fosters the interactive process required under the Act, she says.

Ecker wishes that the new law had included family leave rights for new fathers. She believes that doing so meets the Act's stated goal of keeping pregnant women employed, as stated in its preamble.