On January 1, 2015, the amendments to the Illinois Human Rights Act became effective, adding protections for pregnancy, including a requirement that employers provide reasonable accommodations, including leave, for pregnancy and childbirth (known as the Illinois Pregnancy Accommodation Law).
On November 20, 2015, the Illinois Department of Human Rights issued regulations which – for the most part – restate the law set forth in the amended Human Rights Act, including the definition of reasonable accommodation and undue hardship, employer and employee’s obligations and rights regarding documentation, and employer’s obligation to provide notice (via handbook and poster). The regulations are effective retroactive to November 4, 2015.
The regulations do, however, provide substantially more guidance to employers in two areas: the interactive process and leave as an accommodation.
With respect to the interactive process, the rules specify that employers engage in a three-step analysis to:
- assess the needs and limitations resulting from pregnancy
- identify potential, reasonable accommodations that could meet those needs or overcome those limitations
- the employer and employee should explore whether accommodations would allow the employee to perform the essential functions of the current position
- If not, the employer and employee should explore whether accommodations would allow the employee to work in another capacity for the rest of the pregnancy (or recovery), such as a temporary transfer, reassignment or job restructuring.
- the regulations contain a framework for assessing whether an employee’s refusal to accept an alternate accommodation offered by the employer constitutes evidence that employee is not participating in the interactive process in good faith
- finally, if the employer believes the requested accommodation will impose an undue hardship, the employer and employee must determine if there is a less restrictive alternative available that could accommodate the employee’s pregnancy
- in the case where the undue hardship is prohibitively expensive for the employer, an employee may opt to provide her own accommodation at her own expense, provided that the accommodation does not unduly disrupt the ordinary conduct of the employer’s business
For leave as an accommodation, the rules set forth some specifics, including:
- an employer must grant time off, or leave as an accommodation, unless the employer can show that there is another, effective accommodation that would allow the employee to continue working, or the leave as an accommodation would impose an undue hardship on the ordinary operation of the business
- the employee provides notice for foreseeable (prior notice) and unforeseeable leaves (notice as soon as possible and practical)
- the employer is required to provide job reinstatement to the original job or equivalent position, with all the same benefits, unless the employer can demonstrate that doing so would cause an undue hardship, and prohibits retaliation
- the employer is prohibited from requiring an employee to take leave as an accommodation if the employee did not request leave
What Employers Must Do Now
Illinois employers are responsible for compliance with these provisions now. Because the regulations largely reiterate the statute, employers do not have a lot to do. However, you should review the regulations to ensure that:
- notices (handbook and poster) are in order;
- you are following the interactive process, including the expanded guidance provided in the regulations; and
- certification/documentation and employee notification policies are consistent with the regulation.
What Reed Group is Doing
Reed Group’s signature LeavePro® leave management software is already in compliance with the new law, so additional changes are not required. AbsenceCare℠ clients should know that the Reed Group staff has been updated and trained on the Illinois Pregnancy Accommodation regulations and are ready to assist your Illinois employees.