Illinois Employment Law Update

As 2014 comes to a close, we would like to take this opportunity to remind our clients with Illinois operations about the recent legislative changes with which Illinois employers must be familiar. A number of the laws are currently in effect, while others will become effective on January 1, 2015. Below is a summary of these laws.

Pregnancy Accommodation Now an Obligation Under the Illinois Human Rights Act

The new pregnancy discrimination and accommodation amendments to the Illinois Human Rights Act (IHRA) provide expectant mothers specific workplace protections during their pregnancy and childbirth. Most notably, the amendments provide expectant mothers with the right to request reasonable accommodations for pregnancy, childbirth, and medical or other common conditions related to pregnancy or childbirth. As a result, if a request for a reasonable accommodation is made by a pregnant applicant or employee, Illinois employers are now legally obligated to provide such accommodations including, but not limited to, more frequent or longer bathroom breaks, light duty, breaks for increased water intake and periodic rest, periods of leave even when the employee might not otherwise be qualified under the Family and Medical Leave Act, and time off to recover from childbirth. However, this does not mean that employers must accommodate all requests. The amendments do not require accommodations that result in undue hardship on the ordinary operation of the employer’s business.

Additionally, the amendments prohibit employers from taking adverse employment action against otherwise qualified applicants or employees if the decision is based on the employer’s need to make such reasonable accommodations. Employers are also prohibited from retaliating against an employee who requests an accommodation or otherwise exercises her rights under the IHRA. The amendments also provide job reinstatement rights as well as require handbook language and notice posting with information about employee rights with respect to pregnancy accommodation.

On December 15, 2014, the Illinois Department of Human Rights (IDHR) released the notice that employers will be required to post advising employees of their rights under the new pregnancy accommodation amendments. The IDHR website includes both English and Spanish notices in addition to English and Spanish versions of a Fact Sheet on Public Act 98-1050. Copies of the notices and fact sheet may be downloaded at http://www2.illinois.gov/dhr/Publications/Pages/Pregnancy_Rights_Notice_Requirement.aspx. The law requires the notices to be posted by the time the amendments take effect on January 1, 2015. Employers must also include a statement about employee rights under the new amendments in their employee handbooks.

The new amendments apply to Illinois employers of all sizes. For more information on this topic, see our blog post “New Pregnancy Discrimination and Accommodation Amendments to the Illinois Human Rights Act.”

Illinois Human Rights Act Extends Sexual Harassment Protection to Unpaid Interns

A recent amendment to the IHRA expands the Act’s protection of victims of sexual harassment. The amendment, which applies only in the sexual harassment context, defines “unpaid intern” and lists criteria to determine whether a position qualifies as an unpaid internship.

This amendment applies to Illinois employers of all sizes. The effective date of this amendment is January 1, 2015.

For more information on this topic, see our blog post “Illinois Extends Sexual Harassment Protection to Unpaid Interns.”

Illinois Department of Labor Formalizes Use of Payroll Cards as a Payroll Method

A new amendment to the Illinois Wage Payment and Collection Act (IWPCA) expands the methods by which an employer may pay an employee by including payment by payroll cards. As a result, available methods of payment under the IWPCA include cash, check, direct deposit, and payroll cards. However, employers may not limit the methods of payment to only direct deposit or payroll cards because payment by either method must be voluntary. Accordingly, if an employer chooses to offer payroll cards and/or direct deposit, it must also offer employees the option of being paid by check or in cash.

Employees must consent to payment by payroll card before this method of payment is used. Also, this amendment lists several requirements employers must meet to lawfully use payroll cards as a method of payment, including written notice to employees of the transaction fees that can be deducted from the employee’s payroll card account by the employer or payroll card issuer.

This amendment applies to Illinois employers of all sizes. The effective date of this amendment is January 1, 2015.

For more information on this topic, see our blog post “Illinois Permits Employer Use of Payroll Cards.”

Illinois Department of Labor Relaxes Requirements for Payroll Deductions

New amendments to the IWPCA have relaxed the written consent requirement for making deductions from an employee’s paycheck by permitting employers to obtain the employee’s consent in advance when the deductions will be recurring. The agreement must include (1) the period of time during which deductions will be made; (2) a statement that deductions will be made for the same amount each period; (3) and a statement that the employee may voluntarily withdraw his or her authorization for the deduction at any time.

This amendment, which went into effect on August 22, 2014, applies to Illinois employers of all sizes.

For more information on this topic, see out blog post “Illinois Department of Labor Relaxes Rule Requiring Contemporaneous Authorization for Employee Wage Deductions.”

Illinois “Ban the Box” Law Prohibits Asking About Criminal Histories on Job Applications

Expanding to private employers the “ban the box” rules that already apply to public sector jobs, the Job Opportunities for Qualified Applicants Act prohibits private Illinois employers from asking job applicants about their criminal backgrounds until the applicants are deemed “qualified” for the positions. Specifically, the Act prohibits questions about or consideration of an applicant’s criminal background until after the applicant has been notified that he or she will be interviewed, or, if there will be no interviews, after a conditional offer of employment is made. Three limited exceptions to the new rules apply to certain applicants and employers: (1) applicants licensed under the Emergency Medical Services Act may be asked about their criminal histories; (2) employers subject to state or federal laws that require exclusion of applicants with certain criminal convictions may ask about criminal history; and (3) employers that require a standard fidelity bond may request this information when an applicant’s criminal conviction would disqualify the individual for a bond.

The Act applies to Illinois employment agencies and private employers with 15 or more employees. The effective date of this Act is January 1, 2015.

For more information on this topic, see our blog post “Illinois’s New ‘Ban the Box’ Law Prohibits Asking About Criminal Histories on Job Applications.”

Medical Marijuana Law Impacts Workplace Substance Abuse Policies

The Compassionate Use of Medical Cannabis Pilot Program Act legalizes the use of marijuana for medical purposes. Illinois employers may not penalize employees for their status as registered users. Likewise, employers may not refuse to hire or fire an individual solely because of his or her status as a registered user. Although employers may not penalize employees for their status as patients who are qualified and registered to purchase medical marijuana, employers may restrict or prohibit marijuana use at work and may implement a drug-free workplace policy, provided the policy is enforced in a nondiscriminatory manner. Employers may also adopt reasonable policies concerning the consumption, storage, or timekeeping requirements for registered users. An employee who tests positive under a drug testing policy must be given a reasonable opportunity to demonstrate that he or she was not impaired while at work.

The Act is currently in effect. For more information on this topic, see our article “New Medical Marijuana Law Will Impact Illinois Employers.”

The Illinois Religious Freedom and Marriage Fairness Act

The Illinois Religious Freedom and Marriage Fairness Act provides same-sex married couples and their children with the same benefits, protections, and responsibilities under the law as opposite-sex married couples. Employers that provide insurance and other benefits must be familiar with the Act and its requirements. In addition, this Act amends the Illinois Marriage and Dissolution of Marriage Act by revising provisions on who may marry and what types of marriages are prohibited.

The Act has been in effect throughout all Illinois counties since June 1, 2014.

Practical Tips

Illinois employers should immediately become familiar with the key provisions of the various Illinois laws referenced above. At the same time, employer policies and procedures should be revisited and updated to comply with state law developments. In addition, appropriate training should be provided to employees across different levels of employment.