With the Federal Pregnant Workers Fairness Act (PWFA) going into effect in June of 2024 many employers are unclear about how that Act affects Illinois employees. So, let’s review your responsibilities under the Illinois Human Rights Act (IHRA) and discuss the differences between the state and federal guidelines.
Let’s Revisit the Illinois Pregnancy Accommodation Act
Effective January 1, 2015, the Illinois Pregnancy Accommodation Act amended the Illinois Human Rights Act to give pregnant employees more protection. In essence, the IHRA prohibits adverse actions against employees because of their pregnancy, childbirth or pregnancy-related conditions as well as create an obligation on employers to offer reasonable accommodations for pregnancy and childbirth-related conditions.
For a full discussion on this law, see our blog here: Pregnancy Discrimination – Navigant Law Group, LLC
The Pregnant Workers Fairness Act (PWFA)
Now fast forward to June of 2024 when the Pregnant Workers Fairness Act went into effect. Enforced by the Equal Employment Opportunity Commission (EEOC) the PWFA requires employer to provide a reasonable accommodation to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (including abortion) unless the accommodation will cause the employer an undue hardship. Unlike the Illinois law, the PWFA applies only to accommodations. Other laws under the EEOC control other aspects related to termination and discriminate against employees or applicants on the basis of pregnancy, childbirth, or related medical conditions.
Does Federal or State Law Control?
The PWFA does not replace federal, state, or local laws that are more protective of workers (used here to mean job applicants and employees) affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that require employers to provide accommodations for pregnant workers.
Requirements Under the PWFA and IHRA:
So with Illinois having its own law in place, what aspects of the Pregnant Workers Fairness Act do Illinois employers need to know about?
Both the PWFA and IHRA are intended to protect against pregnancy discrimination in the workplace. These acts require employers to provide reasonable accommodations, and each have various costs, fees, and damages in the event of a violation. The substance of both these acts are essentially the same. These acts make it unlawful for covered employers to discriminate against pregnant workers by:
- Not making reasonable accommodations for employees, unless a company can demonstrate it would create an undue hardship;
- Require an employee to accept an accommodation, other than any reasonable accommodation arrived at through the interactive process;
- Deny employment opportunities to qualified employees if such denial is based on the need of the business to make reasonable accommodations;
- Require an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided; and
- Take adverse action in relation to requesting accommodations
Who is a Covered Employer:
The Federal Act applies to employers with either 15 or more employees. The Illinois Act applies to employers with 1 or more employees. So, if you have fewer than 15 employees, the differences located in the Federal Act currently don’t apply to you. But don’t stop now, take this opportunity to refresh your understanding of the Illinois Pregnancy Accommodation Act. If you have 15 or more employees, read on and ensure you know how to comply with both Acts.
How is Pregnancy Defined:
The PWFA uses the term “known limitations related to pregnancy” and defines it as: “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
And the IHRA uses the term pregnancy and defines it as: “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.”
These two definitions are very similar and by taking both of these acts together any physical, mental, medical, or common issue related to pregnancy will be covered by these acts.
What are Reasonable Accommodations:
A reasonable accommodation according to the PWFA references the Americans Disability Act’s (ADA) definition of a reasonable accommodation. The EEOC guidance provides some examples, stating that “reasonable accommodations” are changes in the work environment or the way things are usually done at work.
The IHRA defines reasonable accommodations as “reasonable modifications or adjustments… that enable an applicant or employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to be considered for the position the applicant desires or to perform the essential functions of that position.”
Both Acts give similar examples of reasonable accommodation, including:
- Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
- Private non-bathroom space for expressing breast milk and breastfeeding;
- Changing food or drink policies to allow for a water bottle or food;
- Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
- Changing a uniform or dress code or providing safety equipment that fits;
- Changing a work schedule, such as having shorter hours, part-time work, or a later start time or allowing telework;
- Temporary reassignment;
- Temporary suspension of one or more essential functions of a job;
- Leave for health care appointments;
- Light duty or help with lifting or other manual labor;
- The provision of an accessible worksite;
- Acquisition or modification of equipment;
- Appropriate adjustment or modifications of examinations, training materials, or policies; or
- Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.
Illinois goes one step further and has some limitations:
- The employer and the employee must engage in a timely, good faith, and meaningful exchange to determine effective reasonable accommodation.
- An employer is not required to create additional employment that the employer would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodation.
- An employer is not required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job, unless the employer does so or would do so to accommodate other classes of employees who need it.
It’s also important to note that both Acts speak to the concept of “undue burden”. Meaning an employer does not have to provide the requested accommodation if the employer can establish it will cause the employer an undue burden. Undue burden is a complicated analysis and not something that can be fully explained in a blog article. For more information visit the EEOC website or the IDHR website.
What Should Covered Illinois Employers Do:
The PWFA specifies that any State laws that have greater or equal protection will not be invalidated through this act. So, take some time to ensure that your employee handbook is up to date and all your employment practices comply with Illinois and Federal laws. Remember, now these claims can be taken up through both the EEOC and the IDHR, so it is important to ensure that you are fully compliant with these laws.
Should you have any questions about how the PWFA impacts your business, are looking to develop pregnancy related polices or would like to schedule a free initial consultation to discuss other employment law needs, contact Navigant Law Group, LLC at (847) 253-8800 or contact us email us at hello@navigantlaw.com.
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If you have any questions, or would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at hello@navigantlaw.com.
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