Month: December 2014

New Occupational Safety and Health Requirements in 2015

Law Repeals Current Requirements and Imposes New Ones

By Joshua Herman

Effective January 1, 2015, the new Occupational Safety and Health Act (the “Act” or “OSHA”) becomes effective pursuant to Public Act 98-874, repealing the Safety Inspection and Education Act and the Health and Safety Act.  The new law establishes federal occupational safety and health standards as default requirements and it applies to every public employer and its employees.  While the Act permits the Illinois Department of Labor to adopt restrictions even more stringent than federal law requires, it also permits the Department to allow temporary and permanent variances from the Act upon request.

Generally, the Act requires a public employer to “provide reasonable protection to the lives, health, and safety of its employees” and to provide “each of its employees employment and a workplace which are free from recognized hazards that cause or are likely to cause death or serious physical harm.”  The Act requires the Director of Labor to adopt rules requiring public employers to keep accurate records and make reports of “work-related deaths, injuries, and illnesses” as well as maintain records of employee exposure to “potentially toxic material or harmful physical agents.”

Employers should review their workplace notices because the Act requires public employers to inform their employees of their protections and obligations under the new Act. Because these notices must include applicable standards or rules the Department of Labor adopts under this Act, the Department will likely provide updated notices soon. Public employers must also provide employees “with information regarding hazards in the workplace, including information about suitable precautions, relevant symptoms, and emergency treatment.”

An employee who believes a violation of the Act has occurred may request an inspection by the Director of Labor, the enforcer of the Act.  The Director may issue citations for violations, which are punishable by civil penalties (up to $10,000.00 per violation) and criminal penalties (ranging from a Class B misdemeanor to a Class 4 felony).  A public employer or its representative may contest a citation or notice of violation by filing a request for hearing with the Director.

At a minimum, public employers should review their workplace policies, potential safety and health risks facing employees, and revise workplace notices to comply with the Act.


Ban the Box

New Law Prohibits Asking About Job Applicant’s Criminal History

By Kateah M. McMasters

Beginning January 1, 2015, the Job Opportunities for Qualified Applicants Act (the “Act”), P.A. 98-774, prohibits employers from asking potential employees to “check a box” or to otherwise provide detailed information about his or her criminal history on a job application.
The General Assembly’s purpose in passing the Act is “to do more to give Illinois employers access to the broadest pool of qualified applicants possible, protect the civil rights of those seeking employment, and ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly.”
Despite the Act’s prohibition, employers may notify applicants in writing that certain offenses will disqualify the applicant from ultimately securing employment due to Federal law, State law, or the employer’s policy. Further, the Act does permit employers to inquire about an applicant’s criminal history if the applicant is determined to be qualified for the position and selected for an interview or, if there is no interview, until after a conditional offer of employment has been made.
Importantly, the Act does not apply to positions where (i) an employer is required by federal or state law to exclude an applicant with certain criminal convictions; (ii) a standard fidelity bond or similar bond is required and an applicant would be disqualified from obtaining a bond because of one or more specific criminal convictions; and (iii) individuals are licensed under the Emergency Medical Services (EMS) Systems Act.
The Act does not provide applicants a private cause of action; instead, the Department of Labor enforces the Act. An employer’s first violation of the Act will result in a written warning giving the employer 30 days to remedy the violation. If the violation is not remedied within 30 days or a second violation occurs, the employer will be subject to a civil penalty of up to $500. If the first violation is not remedied within 60 days or a third violation occurs, the employer will be subject to a civil penalty of up to $1,500. A fourth or subsequent violation, and any violation persisting for more than 90 days, is subject to a civil penalty of up to $1,500 for every 30 days of noncompliance.
It is important to note the Act defines an “employer” as “any person or private entity that has 15 or more employees in the current or preceding calendar year, and any agent of such an entity or person.” It appears from the plain language of the Act that it does not apply to public bodies such as school districts and municipalities. However, the Department of Labor (DOL) has not provided a definition of the terms “person” and “private entity,” thus it is unclear whether the Act does in fact apply to public bodies. Until the DOL provides clarification, public bodies should consult with legal counsel to ensure their hiring process conforms with the Act’s requirements.

New Law for Pregnant Employees and Working Mothers

Illinois Human Rights Act Amended to Increase Pregnancy-Related Protection

By Kateah M. McMasters

Effective January 1, 2015, a recent amendment to the Illinois Human Rights Act (the “Act”) adds pregnancy to the list of characteristics protected from discrimination.  “Pregnancy” includes pregnancy, childbirth, and conditions related to pregnancy or childbirth, expanding the Act to apply to pregnancy, childbirth, and postpartum conditions.

The Act currently prohibits employers from refusing to hire, promote, renew employment, discharge, or discipline employees on the basis of pregnancy.  The amended Act will also prohibit employers from denying “reasonable accommodations” to employees (including part-time, full-time, or probationary employees) and job applicants that are new or expectant mothers.  The Act requires employers provide pregnant employees the already-familiar “reasonable accommodation”, which requires employers to make reasonable modifications or adjustments to the job application process, the work environment, or a position to enable “an applicant or employee affected by pregnancy . . . to be considered for the position . . . or to perform the essential functions of that position.”  The amended Act provides a non-exhaustive list of typical accommodations, which includes: more frequent or longer bathroom breaks, providing private non-bathroom space for expressing breast milk, assistance with manual labor, light-duty, job restructuring, and modified work schedules.

Employers must participate in a timely, good faith and meaningful exchange with an employee in order to evaluate and implement reasonable accommodations.  An employer cannot force an employee to accept a reasonable accommodation or to take leave if another reasonable accommodation can be provided.  Additionally, employers are not required to create new or additional employment opportunities to accommodate pregnancy, unless the employer would do so for other employees who need accommodations.

Despite the general prohibitions contained in the Act, employers are allowed to require medical certification for the requested accommodation(s) but they may only require the following information: (i) the medical reason for the accommodation, (ii) a description of the accommodation, (iii) the date the accommodation became medically necessary, and (iv) the approximate time the accommodation will be required.

An employer may also refuse to provide accommodations if such accommodations would impose an “undue hardship” on the ordinary operation of business.  An accommodation causes “undue hardship” when it is “prohibitively expensive or disruptive.”  To determine whether an accommodation constitutes an undue hardship, the following factors will be considered:

  • the nature and cost of the accommodation;
  • the financial resources of the facility, the number of employees at the facility, and the financial impact on the operation of the facility;
  • the financial resources of the employer, the size of the business, and the number, type and location of the facilities; and
  • the composition, structure, and functions of the employer.

The employer bears the burden of proving a requested accommodation constitutes an undue hardship. Further, the fact an employer has provided or would be required to provide a similar accommodation to a similarly situated employee creates a presumption that an accommodation is not an undue hardship.

As a final matter, the Act requires employers to post a notice of the employee’s rights prepared by the Illinois Department of Human Rights in a conspicuous location, as well as include such rights in an employee handbook.

While the amendments aim to increase the protections afforded to pregnant employees and new working mothers, the Act does not require employers to take extraordinary measures to accommodate employees.  The key to the new law is reasonableness, and there are numerous ways in which an employer can accommodate new and expectant mothers with minimal workplace disruption.  In light of the changes to the Act, employers should evaluate whether any employee requires reasonable accommodation and begin a dialogue regarding the provision of the same.