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Four big Takeaways from Illinois' Proposed Pregnancy Accommodation Rules

Illinois employers, take note — in mid-July, the State's Department of Human Rights published its proposed rules implementing the State's new pregnancy discrimination law.  As readers of this blog will know, the new law took effect at the beginning of 2015. The law imposes additional requirements and clarifies employers' obligation when it comes to accommodating pregnant employees; in effect, it requires that any pregnant employee or job applicant (including those with “conditions related to pregnancy or childbirth”) must be accommodated in the same way that disabled employees are accommodated under the Americans with Disabilities Act. 

Now, with the Department of Human Rights' proposed rules being made public, we have some key additional insights into how the State of Illinois intends to enforce these new pregnancy rules.  Keeping in mind that these are proposed rules, the following are some of the big takeaways for Illinois employers:

    1. Covered conditions broadly defined — In the proposed rules, the Department for the first time defines two key terms: "common condition related to pregnancy or childbirth" and "medical condition related to pregnancy or childbirth." Should these definitions remain in place, employers won't be happy — the definitions are quite broad and clearly are intended to comprise a wide variety of conditions.  "Common conditions," for example, include any "physiological change that accompanies pregnancy or childbirth," including backaches, cramping, morning sickness or nausea, frequent urination, and swollen extremities.  Similarly, "medical conditions" include any "physical or mental impairment, condition, feature or attribute that develops as a result of or in conjunction with pregnancy or childbirth"; the proposed rules explicitly state that a medical condition "need not constitute a disability" under the ADA to come under this definition, and "may be transitory in nature."
    2. A mixed bag on required accommodations — The proposed rules make clear that accommodation of one of these pregnancy conditions may require the employer to modify the application process, adjust the work environment or the circumstances under which work is performed, or temporarily change an employee's full or part-time employment status, work schedule, or job assignment. Taken together, this means that essentially everything is on the table when it comes to accommodating pregnant employees. Employers, however, are also given some tools to push back: first, the standard "undue hardship" defense; second, the caveat that employers are not required to create a new job, discharge any employee to open up a spot as part of an accommodation, or transfer an employee to a job for which she is not qualified; and third, the Department's somewhat unusual (and imprecise) assurance that "[a]ccommodations of a personal nature (e.g., providing a breast pump) need not be provided." 
    3. The good ol' interactive process — Employers will find the interactive process laid out in the proposed rules quite familiar. Employers and employees must meet to explore what accommodations may be available for a pregnancy condition, with the goal being to allow the employee to keep their current job; if that is not possible, the parties are to explore options for temporarily placing the employee in a different position. One other interesting note regarding the interactive process under the proposed rules: if an employer rejects an accommodation because it would cause an undue financial hardship, the employee may then "provide her own accommodation at her own expense," provided that the accommodation does not unduly disrupt business. 
    4. Careful when requesting medical documentation — Under the new law, employers may request a medical provider's documentation of a pregnancy condition only when the request is "job-related or consistent with business necessity." The proposed rules further clarify that a request might not meet the "job-related" standard if the need for an accommodation is "readily apparent" or if the individual is "able to explain the relationship between the requested accommodation and her pregnancy condition."

This is the part where we note all of the usual caveats regarding proposed rules — they aren't yet in effect, they might change (partly or completely) before being finalized, they represent the Department's most aggressive interpretation of the law, etc. etc. etc. What we have been given, however, is a fairly good idea of where the Illinois Department of Human Rights is headed on these issues, and where employers need to be prepared to go. The rules should be finalized later this year, and at that time we will undoubtedly revisit this topic.  

If you have any questions before then, please contact your Hinshaw employment attorney.

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