For the first time in more than 30 years, the Equal Employment Opportunity Commission (EEOC), in a controversial decision that split the commissioners 3-2, issued new guidelines stating that pregnancy alone, even without other underlying medical conditions, may require employer accommodations. Illinois followed the EEOC’s lead and is in the process of implementing an Amendment to the Illinois Human Rights Act.
The EEOC guidelines are intended to clarify a confusing array of federal laws, including the landmark Pregnancy Discrimination Act of 1978 (the “Act”). Interpretations of that law, as well as portions of the Americans with Disabilities Act of 1990 (ADA), have varied widely, which has led to complaints and lawsuits. The Act does not expressly mandate employers to make accommodations for pregnant women. This fact gave rise to a case, Young v. UPS, brought by a pregnant UPS worker who was denied light duty work as advised by her doctors and placed on unpaid maternity leave. This case is headed to the Supreme Court to determine whether and in what circumstances the Act requires an employer to provide work accommodations to pregnant employees who are similar in their ability or inability to work as non-pregnant employees who received work accommodations.
The new EEOC guidelines declare that pregnancy-related conditions can be considered disabilities covered by the ADA, which entitles workers to reasonable work accommodations. According to the EEOC, a pregnant worker is now entitled to receive reasonable accommodations, like light duty work, even if she has not been injured on the job. Further, the EEOC now considers lactation a medical condition that requires schedule flexibility and a private place to express milk. Also, employers can no longer force a pregnant worker to take leave if there is a reasonable accommodation available.
Further, the EEOC is also calling for mothers and fathers to have equal parental leaves for bonding, although the guidelines do suggest giving mothers additional ‘child birth’ leave to recover physically. Both mothers and fathers qualify for unpaid leave under the Family Medical Leave Act (FMLA) if they have worked full-time for at least one year for a company of more than 50 employees. But fathers typically have very little paid parental leave compared to mothers. The new parental leave guidelines issued by the EEOC apply to workplaces with at least 15 employees, part-time workers, and even new hires.
The Illinois Legislature has also passed an amendment (“Amendment”) to the Illinois Human Rights Act (“IHRA”) to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Amendment is awaiting Governor Pat Quinn’s signature. If signed, it will become effective January 1, 2015. This Amendment follows the EEOC guidelines.
The Amendment would require employers, upon request of the applicant or employee, to reasonably accommodate any medical condition of an applicant or full-time, part-time, or probationary employee that is due to pregnancy or childbirth. Various examples of reasonable accommodations are identified in the Amendment, including more frequent or longer bathroom or rest breaks, a private space to express breast milk, light duty, a temporary transfer to a less strenuous position, part-time or modified work schedules, reassignment to a vacant position, and a leave of absence.
Under the Amendment, the employer may request documentation from the employee’s health care provider concerning the need for accommodation if the request is job-related and consistent with business necessity. However, the employer may require only: (1) the medical justification for the accommodation, (2) a description of the accommodation, (3) the date that the accommodation became advisable, and (4) the probable duration of the need for the accommodation.
Like disability discrimination law, the employer and employee are required to engage in a timely, good faith, and meaningful exchange to determine an effective reasonable accommodation. The Amendment also makes it unlawful for an employer to require an employee affected by pregnancy, childbirth, or related conditions to accept an accommodation when the employee has not requested it or to require the employee to take leave if another reasonable accommodation can be provided.
Another important component of the Amendment is that it requires employers to reinstate a pregnant employee who takes leave as an accommodation to her original job or an equivalent position unless doing so would impose an undue hardship.
Effect on Employers
Employers should take proactive measures to ensure that are in compliance with the EEOC guidelines. Illinois employers also must anticipate and prepare for the Amendment to the IHRA. They should take steps to train managers and HR staff as to their non-discrimination and accommodation responsibilities and review applicable policies and procedures to ensure that they encompass the requirements of the amended law. Vantage Legal will continue to watch the Young v. UPS case and share any updates.
If you have any questions about the new EEOC guidelines, please contact Vanessa L. Smith, Esq. or another of Vantage Legal’s attorneys at 312.440.0602.
The information contained in this publication is for informational purposes only and not for the purpose of providing legal advice. Use of this information does not create an attorney-client relationship. For advice about a particular problem or situation, please contact an advisor of your choice. This publication is not intended to solicit legal business; however, it may be considered attorney advertising in some states. For more information, please contact Vanessa L. Smith, Esq., Managing Counsel, Vantage Legal, P.C., 430 West Erie St, Suite 303, Chicago, Illinois 60654.