The Labor and Employment Report: New Illinois Laws Require Changes to Employer Practices

Two new employment statutes recently passed by the Illinois state legislature will substantially change how when and how employers conduct criminal background checks of job applicants and address the needs of pregnant employees.  As the January 1, 2015 effective date of these statutes approaches, Illinois employers should ensure that their policies and practices are in compliance with each law.

The “Job Opportunities for Qualified Applicants Act” prohibits employers from inquiring about, considering, or requiring the disclosure of an applicant’s criminal record until the employer determines that the applicant is qualified and either schedules the applicant for an interview or extends a conditional offer of employment.  The only exceptions to this law are when the employer is required by a federal or state law to exclude applicants with certain criminal convictions (viz, daycare services), the position requires a fidelity bond that applicants with certain criminal records will not be able to obtain, or for ambulance services.  Hence, by January 1, 2015, employers must be certain that their job application forms no longer ask applicants about their criminal history.

The Job Opportunities for Qualified Applicants Act significantly expands Illinois’ current law on criminal background checks, which only prohibit employers from inquiring about or considering an applicant’s history of arrests or expunged criminal history.  Although this new law does not prohibit employers from ultimately choosing not to hire an applicant due to his or her criminal background, rejections of applicants due to criminal history are coming under increased scrutiny both from the EEOC and equivalent Illinois state agencies.  Therefore, we recommend that employers develop a justifiable basis for rejecting applicants due to criminal history (and not simply have a blanket ban on hiring persons with criminal records).         

The second new Illinois law amends the Illinois Human Rights Act by expressly requiring employers to reasonably accommodate pregnant employees or applicants.  In some respects, the duties imposed by the new statute on employers are greater than those required to accommodate a disabled employee.  The law will apply to any company that has at least one employee in Illinois.  “Reasonable accommodations” are defined as reasonable modifications of the job application process or work environment, including more frequent or longer breaks to obtain water or use the bathroom, private nonbathroom space to express breast milk, seating, assistance with manual labor, temporary transfer to less strenuous positions, acquisition or modification of equipment, schedule adjustments or leave to recover from conditions associated with pregnancy and/or childbirth.  Employers will be barred from requiring pregnant employees to take a leave of absence if another reasonable accommodation can be provided, and they will be required to reinstate a pregnant employee who takes a leave of absence to her original or an equivalent position, regardless of the length of time that she has previously worked for the employer or the length of the absence.  Employers also will not be able to compel pregnant applicants or employees to accept an accommodation proposed by the employer.  Instead, employers will be required to provide pregnant employees or applicants with reasonable accommodations unless the employers can demonstrate that the accommodations would be prohibitively expensive or disruptive.  Finally, employers will be required to post a notice describing the provisions of the law.

The pregnancy accommodation law also limits the amount of information that employers can obtain about the need for the accommodation.  If an employer requires disabled employees to provide the same type of documentation and if the request is job-related and consistent with job necessity, an employer can request (1) the medical justification for the accommodation; (2) a description of the reasonable accommodation that is medically advisable; (3) when the accommodation became medically advisable; and (4) the probable duration of the accommodation.  Any requests beyond these categories will violate the new law.

Given the significant impact that these statutes will have upon company operations, employers should review their policies and procedures now and modify them as necessary.  Please contact SFNR if you have any questions about these new statutes or how to appropriately modify any policies or procedures.

The Labor and Employment Report addresses current issues in labor and employment law.  Please contact Seth at (312) 648-2300 or seth.matus@sfnr.com if you have any questions about this blog or any other labor or employment law issue.