Many Illinois businesses and employees are familiar with the federal Pregnancy Discrimination Act of 1978 (“PDA”) and the federal Americans with Disabilities Act of 1990 (“ADA”).   Fewer seem aware of the relatively recent Illinois Pregnancy Accommodation Act (“PAA”), which applies to all employers in the State of Illinois, regardless of size. This article focuses on why the Illinois legislature enacted the PAA, how it differs from the other acts, what it requires of employers, and the new rights it provides to pregnant employees.

Since passing the PAA, the Illinois legislature expressly found that current workplace laws were inadequate to protect pregnant workers. Women are 50 percent of the Illinois workforce, and more than half of those women are of childbearing age and plan to work during pregnancy.  Failing to provide reasonable accommodation to women who are pregnant will likely lead to lost employment opportunities for them. Accommodating pregnant workers is also good for business because it increases worker productivity, retention, decreases re-training costs, and increases workforce morale.

The PAA provides greater protection to pregnant employees than either the ADA or the PDA. A normal, healthy pregnancy is considered to be a temporary condition rather than disability under the ADA, so there is no duty for employers to accommodate women during their pregnancy (if there is a medical impairment resulting from pregnancy, that medical condition may trigger a duty to accommodate).  The PDA simply requires employers to treat an employee who may require temporary modifications in the workplace due to pregnancy the same as it treats any other temporarily disabled employee. This means that the PDA does not require employers to accommodate pregnant women if the employer does not accommodate other temporarily disabled employees, and, like the ADA, does not require accommodation for pregnant employees who are not disabled.

The PAA fills gaps left by the ADA and PDA by requiring employers to provide reasonable accommodation to employees for any condition related to pregnancy or childbirth. It also prohibits employers from failing to hire or otherwise retaliate against an employee or applicant who requests pregnancy accommodation. The PAA defines “reasonable accommodation” as modifications or adjustments to the job application process, work environment, or circumstances under which a position is customarily performed. Examples include:

• More frequent bathroom breaks
• Breaks for periodic rest
• Private space for expressing breast milk and breastfeeding
• Light duty*
• Part-time or modified work schedule
• Assignment to a vacant position
• Time off to recover from conditions related to childbirth or pregnancy

*Employers are not required to create a light duty position that does not exist, unless the employer does so for other classes of employees who need accommodation.

An employer is excused from granting the requested accommodation if it would impose “undue hardship on the ordinary operation of the business of the employer.” The PAA defines “undue hardship” as being “prohibitively expensive or disruptive,” which is assessed by considering things such as cost of the accommodation, the financial resources of the employer, overall size of the employer, and the type of operation run by the employer.

The PAA permits employers to require a certification from the employee’s health care provider substantiating the need for the requested accommodation. The certification, however, cannot require anything beyond the certification the employer requires from any other employee who requests a disability related accommodation not involving pregnancy. At most, the employer can require that the certification contain:

• The medical reason for the requested accommodation
• A description of the requested accommodation
• The date the accommodation became medically advisable
• The probable duration of the accommodation

The PAA also requires an employer to reinstate an employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or an equivalent position when she returns or when her need for reasonable accommodation ceases, unless doing so creates an undue hardship.

Finally, the PAA requires that employers post information regarding the PAA in areas accessible to employees (using a notice that is available on the Illinois Department of Human Rights website), and that employers with employee handbooks include information regarding rights under the PAA in those handbooks.

What minimum steps should Illinois employers take to ensure compliance with the PAA?

• Train supervisory employees on how to respond to requests for pregnancy accommodation
• Revise employee handbooks to include required information regarding rights under the PAA
• Post the required notice

Partner Troy Haggestad has extensive experience representing business clients in employment/labor law matters and commercial litigation.

Partner Tim Rollins  has extensive experience representing clients in law of the workplace issues, as well as business and commercial law.