On May 28, the final version of HB 8 won approval in both state chambers of the Illinois Legislature. Illinois Governor Pat Quinn quickly applauded the development and signaled his intent to sign the bill.
The proposal amends the Illinois Human Rights act to bar discrimination in employment based on pregnancy and to require employers to provide reasonable accommodations to women for pregnancy- and birth-related conditions.
The prohibition against discrimination based on pregnancy and reasonable accommodation requirements will apply to employers of one or more employees.
Pregnancy discrimination. Specifically, the bill makes it a civil rights violation for an employer to refuse to hire, segregate, or act with respect to the recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or terms, privileges or conditions of employment based on pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth. Employers must treat women who are affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth the same for all employment-related purposes, including receipt of benefits under fringe benefits, as other persons not so affected but similar in their ability or inability to work, no matter what the source of the inability to work or employment classification or status.
Reasonable accommodation. Employers are also required to make reasonable accommodations for any medical or common condition of a job applicant or employee related to pregnancy or childbirth, unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of its business. To that end, employers may request documentation from the employee’s health care provider concerning the need for the requested reasonable accommodation to the same extent they request such documentation for disability-related conditions, so long as the requested documentation is job-related and consistent with business necessity.
Documentation requests by employers are limited to only the medical justification for a requested accommodation, a description of the reasonable accommodation medically advisable, the date the reasonable accommodation becomes medically advisable, and the likely duration of the reasonable accommodation. The person seeking the reasonable accommodation has the duty to submit to the employer any documentation requested consistent with these provisions. The bill does, despite the other documentation provisions, permit the employer to require documentation by the employee’s health care provider to determine compliance with other laws.
The bill also requires that the employee and the employer engage in a timely, good faith, and meaningful exchange to determine effective reasonable accommodations.
Reasonable accommodations under HB 8 may include, but are not limited to: more frequent or longer bathroom breaks; water breaks; periodic rest breaks; private non-bathroom space for expressing breast milk and breastfeeding; seating; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; provision of an accessible worksite; acquisition or modification of equipment; job restructuring; part-time or modified work schedule; adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.
The bill expressly states that employers are not required to create additional employment that they would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodations. Nor are employers required to discharge an employee, transfer an employee with more seniority, or promote an employee who does not qualify to perform the job, unless the employer does so or would do so to accommodate other classes of employees.
Adverse actions. Among other things, employers are barred from denying employment or taking adverse employment actions that are based on the employer’s need to make reasonable accommodations to the known medical or common conditions related to the pregnancy or childbirth of an applicant or employee.
Forced accommodations. Employers are barred from requiring an individual to accept a pregnancy-related accommodation when the individual has not made a request for an accommodation. Employers also may not require the employee to take leave under any leave law or employer policy if another reasonable accommodation can be provided to the known medical or common conditions related to the pregnancy or childbirth.
Reinstatement. The bill also requires that employers reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits when she signifies her intent to return, or when her need for reasonable accommodation ends, unless the employer can demonstrate that the accommodation would impose an undue hardship on its ordinary business operations.
Other provisions related to reasonable accommodations include factors that will be taken into consideration in determining whether a requested accommodation would impose an undue hardship on the employer, notice-posting requirements, and anti-retaliation protections.
Once signed by the Illinois Governor, HB 8 will be effective January 1, 2015.