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Blaisdell

After careful evaluation, an Illinois company hires a new director of purchasing. Three months later, it receives a discrimination charge filed with the Illinois Department of Human Rights (IDHR) alleging unlawful discrimination from a candidate who wasn’t hired. That candidate disclosed during her interview that she was taking fertility drugs and was under doctor’s orders to stay off her feet for the following two weeks. She claims she was passed over for the job in retaliation for her request for a reasonable accommodation for her pregnancy-related condition.

At an Illinois factory, weeks drag on as a pregnant line worker, under doctor’s orders to limit lifting, refuses one accommodation after another as insufficient, leaving the company with few options to maintain any degree of productivity.

Meanwhile, an Illinois tech firm finds its sales team down by one member as an employee with postpartum depression asks to not be required to interact with clients and requests two days off a week. The company struggles to find a reasonable accommodation that will enable her to do her job.

All three scenarios are now realities for Illinois businesses under the new Illinois Pregnancy Fairness Law (IPFL), which went into effect Jan. 1. That pregnancy in the workplace should have legal protections is now well established. The Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) have long protected qualifying pregnant workers in companies with 15 or more employees. However, under the ADA, only employees whose pregnancy constituted a disability under the ADA were entitled to accommodations. Meanwhile, the IPFL joins a chorus of states expanding the right to pregnancy-related accommodations to applicants and employees at Illinois businesses of any size. Moreover, the law includes a very broad definition of the protected class of pregnant workers.

The new law reshapes Illinois business workforce decisions in a number of ways by creating a protected class of worker that includes not only women who are pregnant or who have experienced childbirth, but also those who experience “medical or common conditions related to pregnancy or childbirth.” Among its key elements:

• It is designed to afford job opportunities to and keep this broadly defined pregnant class of worker employed.

• It requires employers to provide “reasonable accommodations” to the expanded class of protected workers.

• The employer must prove a high threshold of “undue hardship” if it can’t provide a “reasonable accommodation.”

The law details a laundry list of workplace accommodations such as:

• Bathroom, water and rest breaks

• Private, non-bathroom space for expressing milk and breastfeeding

• Seating

• Help with manual labor duties

• Temporary transfer to a less strenuous or less hazardous position

• Buying or modifying equipment

• Job restructuring/modifying

• Reassignment to a vacant position

• Time off work to recover from conditions related to childbirth

• Leave necessitated by pregnancy or a related condition

While the typical nine-month pregnancy is easily understood, the IPFL’s broader “medical or common conditions related to pregnancy or childbirth” could present the biggest ramification for employers. Infertility might well be a medical condition related to pregnancy. If a doctor orders a patient on fertility drugs to limit activity, such as walking, then it is unclear whether an employer will have to provide that accommodation or not. Postpartum depression would certainly seem related to pregnancy and may require a number of accommodations by businesses, including allowing lengthy absences, unless an employer can prove that providing the accommodation would result in an undue hardship.

What may be the biggest challenge for Illinois businesses is that the IPFL seemingly puts the employee in the driver’s seat on accommodations. No matter how reasonable an accommodation may be, an employer can’t force it on a worker. The IDHR mandatory workplace poster states, “Are you pregnant, recovering from childbirth, or do you have a medical or common condition related to pregnancy? If so, you have the right to: … Reject an accommodation offered by your employer for your pregnancy that you do not desire.” One can easily envision a situation in which a pregnant worker repeatedly rejects accommodations that meet medical restrictions until she gets the accommodation that she wants.

In addition to mandatory posting, the law expressly requires that employers include notification of the law and the rights provided thereunder in any employee handbook. Most importantly, employers should be mindful of the expansive nature of the pregnancy class in any communication with female job applicants or employees.

AMY BLAISDELL is the leader of the Labor and Employment Practice Group of the St. Louis law firm Greensfelder, Hemker & Gale, P.C., which serves Illinois businesses with offices in Belleville and Chicago. For more information, visit www.greensfelder.com.

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