Recently, the Illinois Department on Human Rights (“IDHR”) proposed new pregnancy discrimination and accommodation rules that go above and beyond what is required under the federal Family and Medical Leave Act (“FMLA”). Illinois already enacted the Illinois Pregnancy Fairness Law that requires employers to accommodate employees with pregnancy conditions. However, the proposed rules will add additional requirements that Illinois employers should be aware of in the areas of accommodation, continuation of fringe benefits, and requesting documentation. The IDHR stated that the final rules will likely be issued by October, 2015, so Illinois employers should begin looking at their policies and make revisions where necessary.
Changes to Required Accommodation
One of the most dramatic changes is in the type of accommodations required for employees who develop conditions as a result of their pregnancy. Initially, employers will be required to engage in an interactive process with current employees and applicants with conditions related to their pregnancy. This process should be similar to that an employer engages in with employees in the disability context.
Additionally, employers will be required to grant leave to employees with pregnancy conditions if requested by the employee, unless the employer has an alternate effective accommodation or can show that such leave would subject it to undue hardship. However, this does not mean an employer can require that an employee take leave if there is an alternate accommodation available. Significantly, this proposed change will likely require that employers provide unpaid leave beyond what is required by the FMLA.
Continued Fringe Benefits
In addition to the additional leave, the proposed rules will require that employers continue to provide an employee with their fringe benefits throughout their accommodation period. This includes the provision of insurance coverage while an employee is placed on a modified work schedule or is working part time.
Employer May Request Medical Documentation
When faced with an employee who requests accommodations for a pregnancy condition, an employer may request medical documentation from the employee’s healthcare provider. However, an employer may do this only if it requests the information for disability accommodations, the proposed accommodation would impact the ordinary operations of the employer’s business, and the requested information is not known or readily apparent to the employer.
Illinois employers should begin reviewing the proposed changes that will likely take effect in October, 2015, and revise their policies to mirror the new requirements. The full text of the proposed rules can be viewed on the Illinois register.
To learn more or if you have any questions regarding these issues, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.