United States: Illinois Releases Pregnancy Accommodation Proposed Rules

Phillip Schreiber is a Partner and Adam Young is an Associate in Holland & Knight's Chicago office


  • Employers must accommodate pregnancy-related conditions as if they were disabilities.
  • Employees who receive part-time work or a reduced schedule as an accommodation must still receive all fringe benefits, including health insurance.
  • An employer need not offer an employee an accommodation if the accommodation would result in an undue hardship to the employer.

The Illinois Department of Human Rights (IDHR) released proposed rules regulating pregnancy discrimination and accommodation in employment. Released on July 17, 2015, these rules are authorized by the Illinois Pregnancy Fairness Law, which became effective Jan. 1, 2015, as an amendment to the Illinois Human Rights Act. The IDHR proposed rules are only advisory, for now, but will serve as the basis for the final rules. IDHR expects the final rules to be issued by mid-October 2015. Earlier this year, IDHR released a notice of pregnancy rights that is required to be posted in the workplace.

The proposed rules, in conjunction with the Pregnancy Fairness Law, require employers to provide accommodations to employees for all pregnancy-related conditions, whether or not they rise to the level of a disability or FMLA-qualifying condition.

Duty to Accommodate Conditions Related to Pregnancy

The proposed rules require employers to make reasonable accommodations to employees and applicants for any medical or common condition related to pregnancy or childbirth. These conditions may be transitory in nature and need not meet the definition of disability under the Americans with Disabilities Act or be a serious health condition under the Family and Medical Leave Act (FMLA). Accordingly, almost any pregnancy-related condition will be entitled to an accommodation. Examples of pregnancy-related conditions listed in the proposed rules include gestational diabetes, preeclampsia, post-partum depression, miscarriage and hypothyroidism.

Employers must provide reasonable accommodations for these conditions absent a showing of undue hardship. The proposed rules offer examples of reasonable accommodations:

  • adjustments to a job application process
  • part-time employment status
  • modified work schedule
  • modified job structure or job assignment
  • temporary transfer to a different position
  • more frequent or longer breaks
  • assistance with manual labor
  • light duty
  • making existing facilities and worksites readily accessible
  • time off to recover from conditions related to childbirth

Accommodations of a "personal nature," such as a breast pump, need not be provided by the employer. Nor is an employer required to create a new position to accommodate an employee, discharge another employee, or transfer an employee with more seniority to accommodate an employee.

Time Off or Leave as an Accommodation

An employer must grant time off or a leave of absence necessitated by a pregnancy-related condition as an accommodation if requested by the employee, unless the employer can demonstrate another effective accommodation or an undue hardship. This rule likely means that employers must provide unpaid leave beyond that required by the FMLA. Importantly, an employer may not force an employee to take leave as an accommodation if an alternative accommodation is available that would not cause an undue hardship on the employer.

Requirement to Maintain Fringe Benefits

Absent a showing of undue hardship, the proposed rules require employers to maintain an employee's fringe benefits, including insurance coverage, even if an employee was placed on a modified work schedule or reduced to part-time status such that she would not otherwise be eligible for benefits.

Undue Hardship

An employer need not offer an employee an accommodation if the accommodation would result in an undue hardship to the employer. The employer has the burden of proving undue hardship, under a multi-factor test that is very difficult to prove. The test incorporates the cost of the requested accommodation, the overall financial resources of the facility and the employer, and the type of business operation. If an employer denies a requested accommodation because of undue hardship, the employer must engage in an interactive process with the employee to consider alternative accommodations that would meet the needs of the employee. Alternatively, if the requested accommodation would impose an undue hardship on the employer, the employee may provide her own accommodation at her own expense, provided the accommodation does not unduly disrupt the ordinary conduct of the employer's business.

Interactive Process

The proposed rules require employers to engage in the interactive process with job applicants or employees affected by pregnancy-related conditions to determine appropriate reasonable accommodations much in the same way an employer is required to engage in an interactive process to address a disability accommodation. This process should identify the individual's limitations and find potential reasonable accommodations. As part of the process, an employer is required to provide timely responses to employee accommodation requests.

Medical Documentation

When an employee requests an accommodation for a pregnancy-related condition, an employer may request documentation from a healthcare provider if the employer (1) would do so for a disability-related accommodation request, (2) the request is job-related and consistent with business necessity, and (3) the information is not "known" or "readily apparent" to the employer.

Next Steps for Employers for Compliance

The Illinois Pregnancy Fairness Law already requires employers to accommodate pregnancy-related conditions in a manner similar to an employer's obligations to accommodate disabilities. Under the proposed rules, employers must engage in the interactive process and freely grant a range of accommodations, including modifications of job duties and work schedules, and leave beyond what would be required by the Family and Medical Leave Act. The proposed rules protect employee fringe benefits and make it difficult for employers to deny an accommodation because of undue hardship. Because the final rules likely will closely align with the proposed rules, employers should begin training managers and supervisors now about the accommodation requirements and also modify existing policies as necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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