What to Expect When Your Worker is Expecting

2014 was certainly the year of pregnancy protection. Not only did the EEOC issue a revised Guidance on the Pregnancy Discrimination Act giving pregnant employee protections similar to that under the ADA, but Illinois revised its Human Rights Act to specifically do the same. The Supreme Court did its part in hearing an appeal from a former UPS employee who claimed discrimination based on her pregnancy. As a result of this new focus and new legislation, a question that has often arisen is how should employers implement and enforce this law.

One of the easiest first steps for employers is to get posters. The revised Illinois Human Rights Act which protects pregnant employees in the workplace also requires employers covered by the Act to post notice of these protections so that employees can be aware of them. As with other legally mandated employment postings, employers can obtain these through the Illinois Department of Human Rights.

Secondly, employers should review their employee handbooks or policy and procedural manuals to ensure that their policies include a prohibition on discrimination based on pregnancy, having been pregnant, or planning to become pregnant, of both employees and applicants. The new state legislation, as well as the EEOC Guidance also call for procedures to request and obtain an accommodation, as well as file a complaint of pregnancy discrimination in the workplace, that mimic the procedures under the ADA. A stand alone policy which prohibits pregnancy discrimination as well as incorporates procedures for employees to request and obtain an accommodation and complain of discrimination, which are similar to that in the employer’s updated ADA policy is a best practice for employers.

The amendments to the Human Rights Act which prohibit pregnancy discrimination also identify presumptively reasonable accommodations. They include such things as more frequent bathroom breaks, sitting instead of standing more meal or rest breaks, light duty assignments and allowing the employee to carry water with her. While the accommodations identified in the Act serve as good examples of possible accommodations, it does not preclude other potential accommodations determined on a case by case basis. As with the ADA, an interactive process which includes an analysis of the requested accommodations, the particular job description as well as the general and specific needs of the employer will lead to either reaching an accommodation or determining that the request is unduly burdensome.

Employers shouldn’t think that their work is done once they establish or update their pregnancy discrimination policy. All of an employer’s policies should ensure that pregnant workers and applicants are treated fairly but are not favored.  For instance, an employer may offer a paid maternity leave during the period that an employee is physically unable to work due to pregnancy or childbirth, but if a paid leave extends beyond that time frame, the employer better be prepared to offer that same benefit to new dads as well. Similarly, a hard and fast requirement that all employees must work at least one year to qualify for an unpaid leave of absence may also run afoul of the law, when a pregnant worker request unpaid time off  for childbirth in their first year of employment. Other policies may equally be impacted by the new legislation.

Finally, employers should train their staff on the requirements of the new law. After all, it’s an employer’s front line supervisor and/or manager that usually confronts these situations first. A proper response and focus at the outset can avert hours of sitting with your attorney later.

 The labor and employment attorneys at Ancel Glink can also assist you in ensuring that your workplace has the most up to date policies and procedures. Contact Margaret Kostopulos or any of the labor and employment attorneys at Ancel Glink for more information on how we can keep your policies and procedures legally compliant.