HAPPY (BELATED) MOTHER’S DAY
By: Laura J. Young
Amid relatively little fanfare, after finding that “Enabling pregnant women workers to work through pregnancy is good for business,” Illinois embraced a change in law. This Act, known as the Pregnancy Accommodation Act or the Pregnancy Fairness Law, went into effect on January 1, 2015 and has wide-spread impact on the work force in Illinois. (The legislature explicitly stated that “women of child-bearing age are 54% of women workers”! Public Act 098-050(5)(2)). These newly enacted provisions have earned Illinois a progressive place in the national spotlight on what may be sweeping reforms that likely will soon be occurring nationally.
This Act has far-reaching implications: It applies to all employers regardless of how many (or how few) employees. It also applies to part time, full time, and probationary employees. It even extends to job applicants.
This Act holds that it is illegal for an employer to fail to reasonably accommodate a pregnant employee unless the accommodation will impose an undue hardship. The burden is on the employee to make the request. Once she does, the burden shifts to the employer to grant the accommodation unless the employer can show that it would impose an undue hardship to the “ordinary operation of the business.” So, the obvious question is what would be an undue hardship? The court is permitted to look at factors such as the nature and the cost of the accommodation, the financial resources of the company, including the number of employees, and the type of operation.
The types of accommodation that can be requested enable an “employee affected by pregnancy” (the Act includes those who have recently given birth) to perform essential functions. For example, more breaks for water and for bathroom breaks may be an accommodation. In addition, if requested, according to this Act, the employer must provide a “private non-bathroom space for expressing breast milk and breastfeeding”, time off to recover from pregnancy, and leave necessitated by pregnancy. The examples provided by the Act are not meant to be inclusive and go far beyond what many employers would consider necessary using the framework typically used by the Americans With Disabilities Act.
In response to such a request, an employer may ask for documentation from a healthcare provider under certain conditions enumerated by the Act.
Whether this Act will protect the health and jobs of the pregnant work-force remains untested.
For more information, see P.A. 98-1050; 775 ILCS 5/1 et. seq.; State of Illinois, Department of Human Rights.