Business Law Alert: New Employment Laws for 2015

On January 1, 2015, the Job Opportunities for Qualified Applicants Act and new pregnancy provisions of the Illinois Human Rights Act take effect. The Job Opportunities Act applies to employers of 15 or more employees in the current or preceding calendar year. The Human Rights pregnancy amendments apply to all Illinois employers.

The Job Opportunities for Qualified Applicants Act.
The Job Opportunities Act strives to ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly on the basis of their criminal history. According to the Act, an employer may not inquire about, consider, or require disclosure of an applicant’s criminal record or criminal history until after: (a) the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview; or (b) if there is no interview, until after a conditional offer of employment is made.

The foregoing does not apply for positions when: (a) employers are required to exclude applicants with certain criminal convictions due to federal or state law; (b) a bond is required and an applicant’s conviction would disqualify the applicant from obtaining such a bond; or (c) the employees are licensed under the Emergency Medical Services (EMS) Systems Act. The Job Opportunities Act does not prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify employment in a particular position due to federal or state law or the employer's policy.

Non-exempt employers that inquire about criminal history during the initial application process are advised to change their inquires before January 1, 2015.

The Illinois Human Rights Act
The Illinois Human Rights Act requires all Illinois employers to not discriminate in employment matters. Effective January 1, 2015, the Human Rights Act will include new provisions covering pregnancy, childbirth and related conditions (collectively “Pregnancy”). Pursuant to the Human Rights Act, it is a civil rights violation for an employer to refuse to hire, segregate, or make employment decisions on the basis of Pregnancy.

If an employee or job applicant requests a reasonable accommodation for any condition related to Pregnancy, the Human Rights Act requires an employer to engage in a timely, good faith and meaningful exchange with the employee or applicant regarding the requested accommodation.  Employers are required to make reasonable accommodations. An accommodation is reasonable if it will enable an applicant or employee to be considered for the position or to perform the essential functions of that position. According to the Human Rights Act, reasonable accommodations include, but are not limited to:

  • more frequent or longer breaks for use of the bathroom, rest or water intake;
  • private non-bathroom space for expressing breast milk and breastfeeding;
  • seating;
  • assistance with manual labor;
  • light duty;
  • temporary transfer to a less strenuous or hazardous position;
  • the provision of an accessible worksite;
  • acquisition or modification of equipment;
  • job restructuring, including a part-time or modified work schedule;
  • adjustment or modifications of examinations, training materials, or policies;
  • reassignment to a vacant position;
  • time off to recover from conditions related to childbirth; and
  • leave necessitated by Pregnancy.

An employer is not required to provide an accommodation if the accommodation would create undue hardship, which means an action that is prohibitively expensive or disruptive when considered in light of: (a) the nature and cost of the accommodation; (b) the employer’s financial resources; (c) the number of employees; (d) the impact of the accommodation; (e) the employer’s business operations; and (f) other business factors. Further, an employer is not required to create new employment, discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified, unless the employer would do so to accommodate other classes of employees.

An employer may request documentation from the employee's health care provider if the employer's request is job-related and consistent with business necessity. The request must be limited in scope to:  (a) the medical justification for the requested accommodation; (b) a description of the proposed accommodation; (c) the date the accommodation is to become medically advisable; and (d) the probable duration of the accommodation.

The Human Rights Act prevents an employer from:  (a) requiring an employee to accept an accommodation; (b) requiring an employee to take leave under any other law or policy if a reasonable accommodation is available; and (c) refusing or failing to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, unless the employer can demonstrate the accommodation would impose an undue hardship on the ordinary operation of its business.

Finally, the Human Rights Act requires employers to add pregnancy accommodation policies to their employee handbooks and to post a policy published by the Illinois Department of Human Rights in the workplace.

The attorneys at Gozdecki, Del Giudice, Americus, Farkas & Brocato LLP are prepared to answer any questions you may have regarding this Business Law Alert, and to assist you in reviewing and/or modifying any policies affected by the new laws. If you would like to speak with an attorney about any of the issues raised in this Business Law Alert, please contact your servicing attorney. Information contained in this Business Law Alert should not be construed as legal advice or opinion.