Category: Kateah McMasters

Changes to Ashley’s Law: What Does It Mean for Medical Marijuana in Schools?

Governor signs bill expanding the administration of medical marijuana to students.

By:  Kateah M. McMasters

On August 12, 2019, Governor Pritzker signed Senate Bill 455 expanding “Ashley’s Law”, which currently allows a parent, guardian or designated caregiver to administer medical marijuana to a student with a valid prescription on school grounds and on school buses.

The law’s expansion (Public Act 101-0370) amends Section 22-33 of the Illinois School Code to require school districts, public schools, charter schools, and non-public schools to allow a school administrator or nurse to administer a “medical cannabis infused product” (i.e. edible and topical products) to a student that is a registered qualifying patient under the Compassionate Use of Medical Cannabis Program Act while on school grounds, at school-sponsored activities, at before or after school care on school grounds, or on a school bus.  However, the law does not explicitly require school administrators or nurses to actually administer medical marijuana to students; instead, the amendment only requires schools to allow these personnel to administer medical marijuana to a student if they are willing to do so.

The amendment also permits schools to authorize students to self-administer their own medical marijuana under the direct supervision of an administrator or nurse.  As with the change discussed above, the law does not explicitly require schools to allow its students to self-administer their medical marijuana; however, they are permitted to do so.

Additional requirements and training

In order for a school administrator or nurse to administer medical marijuana to a student, or for a student to self-administer medical marijuana, the parent or guardian must provide the following to the school:

(1) written authorization for its use, including the time where or the special circumstances under which the medical marijuana must be administered, and

(2) a copy of the registry identification card of the student (as a registered qualifying patient) and the parent or guardian (as a designated caregiver).

If a school permits self-administration by a student, the authorization must be renewed each school year.

Medical marijuana to be administered by a school nurse or administrator, or self-administered by the student, may now be stored on school property, but it must be stored in the same manner as all other student medication at the school, and can only be accessed by the school nurse or an administrator.

Personnel who elect to administer medical marijuana to students must complete training on the administration of medical cannabis infused products before they may administer cannabis to students.  The training will be developed by the Illinois State Board of Education and Illinois Department of Public Health., and must be completed annually.

Finally, the new law amends Section 25 of the Compassionate Use of Medical Cannabis Program Act to extend its immunities to school administrators and nurses who elect to administer medical cannabis to students or to assist students in self-administration under the School Code.  Such nurses and administrators are immune from arrest, prosecution, and denial of any right or privilege, including a civil penalty.  However, unlike the immunities for designated caregivers, school nurses and administrators are not immune from disciplinary action by an occupational or professional licensing board.

Next steps

The new law takes effect on January 1, 2020. Prior to the effective date schools should review their policies addressing the administration of medical marijuana as necessary. Schools without such policies should come into legal compliance by establishing them, because such policies were required when Ashley’s Law first became effective on August 1, 2018.  

Schools are encouraged to contact legal counsel to discuss the impact of the changes to Ashley’s Law and to formulate a new policy regarding the use of medical marijuana by qualifying students on school buses and school grounds that is consistent with the amendments to the School Code.

Image of cannabis leaves

Ashley’s Law: What Does It Mean for Medical Marijuana in Schools?

Illinois lawmakers pass Ashley’s Law to allow students to use medical marijuana on school grounds.

By:  Kateah M. McMasters

On May 17, 2018, the Illinois Senate overwhelmingly passed House Bill 4870 (HB 4870) which, if signed by Governor Rauner, will allow students with a valid prescription for medical marijuana to administer, consume or use it on school grounds and on school buses.

HB 4870, which has been named “Ashley’s Law,” was initiated by the parents of a 12-year old student who, after exhausting all traditional medications, was prescribed medical marijuana to treat epileptic seizures caused by treatments for leukemia.  In January 2018, Ashley’s parents filed suit in federal court against the State of Illinois and Schaumburg School District No. 54, alleging that state laws and school policies prohibiting qualifying students from possessing, using, or consuming medical marijuana on school grounds and school buses failed to accommodate students with disabilities in violation of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA).

While HB 4870 provides families and school districts some relief to accommodate students with disabilities, Ashley’s Law does not provide the wide-sweeping relief many would like to believe.

The Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) currently allows qualifying patients under the age of 18, with the consent of a parent or guardian, to receive a registry identification card from the Illinois Department of Public Health in order to obtain a prescription of medical cannabis, commonly referred to as medical marijuana.  However, minors are prohibited from consuming medical marijuana in any form other than medical marijuana-infused consumable products.  In other words, qualifying patients under 18 years of age cannot smoke medical marijuana, but instead are limited to using marijuana in the form of edible or topical products.  While the Act does allow qualifying patients under 18 to use medical marijuana generally, it currently prohibits the possession and consumption of any form of medical marijuana on a school bus and on the grounds of any preschool, primary school, or secondary school.  If a student has a disability that qualifies for the issuance of a registry identification card and medical marijuana prescription, the same disability will more than likely qualify the student for an IEP or 504 plan.

Ashley’s Law amends the Act and the Illinois School Code to allow the possession and consumption of medical marijuana on a school bus and on the grounds of any school district, public school, charter school, or non-public school.  More specifically, the law  adds a new Section 22-23 to the Illinois School Code, requiring schools to authorize a parent, guardian, or designated caregiver to administer a medical marijuana-infused product to a student on school grounds or a school bus as long as the student (as a registered qualifying patient) and the parent, guardian or designated caregiver (as a registered designated caregiver) have been issued a registry identification card by the State of Illinois.  After administration, the parent, guardian, or designated caregiver must remove the marijuana product from school grounds or the school bus.

School districts dealing with medical marijuana

If passed, Ashley’s Law will require schools to allow the administration of medical marijuana to students on school grounds; however, it also provides schools with two broad exceptions.  First, a school can prohibit the parent, guardian, or designated caregiver from administering the medical marijuana to the student in any manner that would create a disruption to the educational environment or cause exposure of the product to other students.  Ashley’s Law does not define what constitutes a “disruption to the educational environment” or “exposure,” and without further guidance would appear to grant the school district substantial discretion.

Second, a school district can prohibit the administration of medical marijuana if it would cause the district to lose federal funding.  Federal law still lists marijuana as a Schedule 1 drug, making it illegal to grow or use any marijuana product, including medical marijuana (even if it is authorized by Illinois law).  Therefore, if a school district receives any form of federal funding that is contingent upon compliance with federal law, it could be at risk for having those funds withheld by the federal agency that administers the funding.

Ashley’s Law permits the administration of medical marijuana to a student in the education setting rather than forcing the removal of a student from school in order to provide appropriate care.  At the same time, Ashley’s Law also ensures that school districts will not be prosecuted by the State of Illinois for allowing qualifying students to use medical marijuana on school grounds.  However, Ashley’s Law does not authorize any medical marijuana to be kept on school grounds as it does other student medications.  Nor does Ashley’s Law require school personnel, including school nurses, to administer medical marijuana to students as it does with other student medications.  Finally, Ashley’s Law does not provide school districts with any protection against an action by the federal government related to the use of medical marijuana on school grounds or school buses.  While several other states have passed laws similar to Ashley’s Law, it is not yet clear how the federal government intends to treat such laws.

Next steps

Ashley’s Law was sent to the Governor’s desk on June 15th and is currently awaiting his signature.  If signed, Ashley’s Law will take effect immediately.  If the Governor takes no action on the bill, it will take effect 60 days after it was sent to him for signature.  If passed into law, school districts will be required to adopt a policy implementing Ashley’s Law.  School districts are encouraged to contact legal counsel to discuss the impact of Ashley’s Law and formulate a policy regarding the use of medical marijuana by qualifying students on school buses and school grounds.

Additionally, to avoid any disruption or exposure to other students, the procedure and manner of administering medical marijuana to a particular student should be discussed by the school district, the parents, and the IEP Team or 504 Team as applicable.  Such procedures should be included in the student’s IEP or 504 plan prior to the administration of medical marijuana at the school.

Changes to the Juvenile Court Act

Records of Municipal Ordinance Violations to be Kept Confidential & Automatic Expungement of Law Enforcement Records


Effective January 1, 2018, two important changes were made to the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.) (the “Act”) concerning records of minors who are investigated, arrested or taken into custody prior to the minor’s 18th birthday.


Under prior law, the Act only applied to the courts and law enforcement agencies (which include municipal police departments), rather than to units of local government themselves.


However, within the recent changes to the Act, municipalities are now required to keep confidential all records of municipal ordinance violations that are maintained by the municipality and which relate to a minor who has been investigated, arrested or taken into custody prior to the minor’s 18th birthday.  Except in certain limited situations, such ordinance violation records are not subject to disclosure, inspection, or copying.


This change to the Act will likely not have a significant impact upon those municipalities which utilize a law enforcement agency for the issuance of ordinance citations because records that are maintained by law enforcement agencies were previously subject to the Act’s confidentiality and disclosure rules.  However, those municipalities which do not utilize a law enforcement agency for the issuance of ordinance citations (i.e. code enforcement officers or marshals) are now subject to these rules.


Specifically, municipalities are now prohibited from disclosing to the general public any records pertaining to an ordinance violation by a minor.  In addition, municipalities are only authorized to allow the inspection and copying of a minor’s ordinance violation record(s) in very limited circumstances, including, but not limited to, the following:


  1. Any local, State, or federal law enforcement officer when necessary for the discharge of their official duties;
  2. Prosecutors, probation officers, social workers, and other individuals assigned by the court and in connection with criminal proceedings;
  3. Department of Children and Family Services (DCFS); and
  4. Appropriate school officials only if there is an imminent threat of physical harm to students, school personnel, or others present in the school or on school grounds.


Interestingly, the Act does not create an exception for the disclosure, inspection or copying of records by the subject minor, the minor’s parents or guardians, or an authorized agent.  While the Act may not explicitly authorize such action, it may nevertheless be required under the law.  Municipalities should consult with counsel prior to any disclosure, inspection or copying of records which relate to a minor.


The second change, while only impacting law enforcement agencies, imposes a rather large burden upon local law enforcement agencies and municipal police departments.  The Act now requires all law enforcement agencies to expunge or permanently destroy certain records that are maintained by the law enforcement agency pertaining to minors on an annual basis.  These records, which are called “law enforcement records”, include, but are not limited to, records of arrest, station adjustment, fingerprints, probation adjustments, the issuance of a notice to appear, and any other records or documents relating to a minor suspected of committing an offense or evidence of interaction with law enforcement (i.e. ordinance violations).


This new requirement mandates that, on or before January 1st of each year, all law enforcement agencies within the State of Illinois automatically expunge all law enforcement records, except records for a serious felony offense, relating to events occurring before an individual’s 18th birthday.  However, such law enforcement records must meet the following requirements in order to qualify for automatic expungement:


  1. One year or more must have passed since the date of arrest or the documented law enforcement interaction;
  2. No petition for delinquency or criminal charges has been filed relating to the arrest of documented law enforcement interaction; and
  3. Six (6) months must have passed without an additional or subsequent arrest or filing of a petition for delinquency or criminal charges.


Local law enforcement agencies and municipal police departments should work with counsel and the State’s Attorney’s Office to ensure that records qualify for expungement prior to their destruction.


Municipalities are also reminded that expunged juvenile records may not be considered in employment matters.  The Act requires applications for employment, including employment with a public body, to contain a statement that the applicant is not obligated to disclose expunged records relating to any act(s) that was committed while the applicant was a minor.

Image of cannabis leaves

New Law Decriminalizing Marijuana and Drug Paraphernalia

Ordinances Enacted by Units of Local Government Not Affected by New Law Decriminalizing Marijuana and Drug Paraphernalia.

By:  Kateah M. McMasters

Effective July 29, 2016, the possession of certain small amounts of cannabis and drug paraphernalia are no longer criminal offenses.  The bill that was signed into law by Governor Bruce Rauner on July 29, 2016 decriminalizes the possession of small amounts of cannabis and drug paraphernalia by amending the portions of the Illinois Criminal Code pertaining to possession of cannabis and possession of drug paraphernalia.  Under the amended Cannabis Control Act (720 ILCS 550/1 et seq.), a person in possession of less than 10 grams of any substance containing cannabis is guilty of a civil law violation.  Such civil violation is punishable by a minimum fine of $100 and a maximum fine of $200.  Similarly, under the amended Drug Paraphernalia Control Act (720 ILCS 600/1 et seq.), any person who is also in possession of drug paraphernalia [during the civil cannabis violation] is guilty of a civil violation and subject to the same $100 minimum fine and $200 maximum fine.

The proceeds of the fines for these civil violations are distributed as follows:

  1. $10.00 to the Circuit Clerk;
  2. $10.00 to the law enforcement agency that issued the violation;
  3. $15.00 to the County;
  4. $10.00 to the Appellate Prosecutor;
  5. $10.00 to the State’s Attorney; and
  6. The remainder to the law enforcement agency that issued the citation ($45 to $145).

The Cannabis Control Act was also amended by adding a new section which addresses the impact of the changes upon local ordinances.  Section 17.5 of the Act explicitly states: “The provisions of any ordinance enacted by any municipality or unit of local government which impose fines upon cannabis other than as defined in this Act are not invalidated or affected by this Act.”

Therefore, municipalities and park districts are not required to change their ordinances in order to comply with the new law.  Municipalities and park districts may still issue ordinance citations for possession of less than 10 grams of cannabis and possession of drug paraphernalia, as well as impose fines for such possession in excess of $200.  However, because the law is already in effect, municipal and park district police departments should immediately review department policies and procedures with regard to processing violations for possession of cannabis and drug paraphernalia as either ordinance violations, civil violations, misdemeanors, and/or felonies.

New Laws for Law Enforcement Agencies in 2016

Officer-Involved Deaths, Body Cameras, Terry Stops, Towing of Vehicles, and More

By Kateah M. McMasters

On January 1, 2016 several new laws regulating law enforcement agencies and their activities went into effect.  A brief summary of each law is provided below.

Public Act 99-352

Law Enforcement Officer-Worn Body Camera ActThe Act provides that any agency that elects to use body cameras must adopt a written policy relating to their use, provide training to those officers that use the cameras, and provide an annual report to the Illinois Law Enforcement Training Standards Board (the “Board”).  Note that the Act only applies to law enforcement agencies that elect to use body cameras; it does not require agencies to use body cameras.

The annual report required by the Act must be submitted to the Board on or before May 1st of each year, and include (1) a brief overview of the agency’s composition; (2) the number of officers using body cameras; (3) the number of body cameras being used; (4) any technical issues with equipment and how they are fixed; (5) a brief description of the review process used by supervisors; and (6) the time, date, precinct, offense charged, date charges filed, and any other relevant information for each recording that is used in the prosecution of an offense.

The Act also provides that the body camera recordings are generally exempt from disclosure under FOIA.  However, such recordings must be disclosed in accordance with FOIA in any of the following situations: (1) the subject is a victim or witness and the agency obtains written permission from the subject or his legal representative; (2) the recording is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm; or (3) the subject of the recording, his attorney or his legal representative requests it.

Additionally, the Law Enforcement Camera Grant Act (50 ILCS 707/5) provides financial assistance to municipalities for the purpose of purchasing body cameras.

Terry StopsSection 11-212 of the Illinois Vehicle Code has been amended to include that officers complete a “uniform pedestrian stop card” (“Stop Card”) for a pedestrian that is frisked, searched, or arrested.  A Stop Card must include the date; time; location; gender of the pedestrian; alleged reasons for the stop; whether a frisk was conducted; reasons for the frisk; whether the frisk was by consent or other means; whether contraband was found during the frisk; type and amount of contraband seized; whether a search was conducted; reasons for the search; whether the search was by consent or other means; whether the stop resulted in a warning, ticket or arrest; and the name and badge number of the officer.

The forms currently used by a majority of law enforcement agencies do not contain all of the required information.  Therefore, it is recommended that an agency prepare or obtain new forms or modify existing forms to comply with the law.

Additionally, Section 107-14 of the Illinois Code of Criminal Procedure was amended to include a requirement for officers to issue a “stop receipt” when a person is stopped in a public place, the officer reasonably believes the person is committing, about to commit, or has committed a crime (excluding traffic offenses and ordinance violations), and the officer conducts a frisk or search.  The stop receipt must contain the officer’s name, badge number, and reason for the stop.  However, the officer is not required to issue a stop receipt if it is impractical, impossible or exigent circumstances exist.

The key difference between a “stop card” and “stop receipt” is the nature of the violation.  A stop card is issued to pedestrians that are stopped based upon a violation of the Illinois Vehicle Code, while a stop receipt is issued to any individual that is temporarily stopped for questioning in relation to criminal activity and not subject to arrest.

Police and Community Relations Improvement ActThe Act requires all law enforcement agencies to have a written policy regarding the investigation of officer-involved deaths.  An officer-involved death is the death of any individual caused by an act or intentional omission of a law enforcement officer while acting within the scope of his employment.

The policy must provide that the investigation shall be conducted by at least 2 investigators who are not employed by the agency involved in the death, and the lead investigator must be certified by the Illinois Law Enforcement Training Standards Board (the “Board”) as a Lead Homicide Investigator.  If the death involves a motor vehicle accident, the policy must provide that at least one investigator shall be certified by the Board as a Crash Reconstruction Specialist.  Finally, the policy must require the investigators to provide a report to the State’s Attorney or to publicly release it if the State’s Attorney declines to prosecute.

The Act permits an agency to conduct an internal investigation into an officer-involved death as long as it does not interfere with the outside investigation required by the Act.

Uniform Crime Reporting ActThe Act requires all law enforcement agencies to submit the following information to the Illinois State Police (ISP) on a monthly basis: a report for any arrest-related death (not including death of an officer), discharge of a firearm by an officer causing a non-fatal injury (beginning January 1, 2017), a report on hate crimes, a report on any alleged commission of a domestic crime, data on specific offenses selected by ISP, and data on offenses and incidents reported by schools.

In addition to the monthly reports, beginning July 1, 2016, all agencies must submit information regarding a criminal homicide as required by ISP rules and regulations on a quarterly basis.

Officer Professional Conduct Database:  The Illinois Police Training Act was amended to now require that all law enforcement agencies notify the Illinois Law Enforcement Training Standards Board (the “Board”) when there has been a final determination of a willful violation of agency policy, official misconduct, or violation of law if an officer is discharged as a result of the violation or resigns during the course of an investigation.  The agency must notify the Board of the nature of the violation within 30 days of the final determination.

Use of ForceThe Illinois Criminal Code was amended to prohibit peace officers from using chokeholds in the performance of their duties, unless deadly force is justified under the Criminal Code.  A chokehold is defined as “applying any direct pressure to the throat, windpipe, or airway of another with the intent to reduce or prevent the intake of air.”

Public Act 99-438

Tow Rotation ListThe Act amends the Illinois Vehicle Code by requiring any law enforcement agency whose duties include the patrol of highways to maintain a tow rotation list.  The list must be used by officers when authorizing any vehicle tow within its jurisdiction.  The agency is allowed to maintain multiple lists covering different geographic locations within its jurisdiction; a towing service may be included on more than one list.

Any towing service may apply for inclusion on the rotation list by submitting an application in the form and manner provided by the law enforcement agency.  In order to be included on the rotation list, a towing service must meet the requirements set forth in the Act (see 625 ILCS 5/4-203.5).  An agency may select which towing service(s) meeting these requirements will be included on the rotation list.  Complaints regarding inclusion on the list should be referred in writing to the head of the agency; however, an agency cannot be held liable for excluding a service from the list.

When an officer initiates a vehicle tow, he must inform his agency that a tow has been authorized.  The agency must then select a towing service from the list and contact the service directly.  Towing services must be contacted in the order listed; however, in the event a service is unavailable, the next service on the list should be contacted.  An agency may also deviate from the order listed in the event of an emergency, or if the officer or agency determines the service is not properly equipped to handle the tow.  Whenever a towing service that has not been requested arrives on scene, the officer is obligated to tell that service to leave.


Crucial Rule for Processing Traffic Tickets

Court dismisses ticket because it was not transmitted to circuit clerk within 48-hour deadline

By Kateah M. McMasters

Supreme Court Rule 552 requires municipal police officers and police departments to transmit traffic citations to the circuit clerk within 48 hours of issuance.

In 1989, the Illinois Appellate Court held that this Rule is directory rather than mandatory, and that the dismissal of a traffic citation for a violation of this Rule is only appropriate where the procedure used by an officer or police department was part of a pattern that clearly and consistently violated the Rule.  However, the Court did not define what constitutes such a pattern.

Through its recent decision in People v. Geiler, the Illinois Appellate Court shed further light on this issue when it upheld a dismissal of a traffic citation based upon a police department’s practice of delivering citations to the circuit clerk on Mondays and Fridays.

People v. Geiler

People v. Geiler arises from a speeding ticket issued to Christopher Geiler on Monday, May 5, 2014, by a City of Troy police officer.  Troy police department usually hand-delivered tickets issued over the weekend on Monday and delivered citations issued during the week on Friday. Thus, Geiler’s Monday ticket was not filed with the Madison County circuit clerk until Friday, May 9, 2014 (four days later).

The Geiler Court found that, under this procedure, citations issued on Mondays, Tuesdays and Fridays were consistently transported to the circuit clerk beyond the 48-hour deadline.  Thus, the Court upheld the dismissal of Mr. Geiler’s citation because the delay he suffered was a clear and consistent violation of Rule 552.  Moreover, the Court upheld the dismissal despite the testimony of an officer with 11 years of experience that it was impossible to transport citations to the courthouse every day.

While the dismissal of one traffic citation may seem inconsequential, the regular dismissal of traffic citations for regular delays could significantly impact a public body’s ability to consistently enforce the law or to generate revenue from the issuance and prosecution of traffic citations.

Lessons learned: review ticket procedures immediately

Public bodies should review their police departments’ procedures for processing traffic citations to ensure compliance with Rule 522 and to avoid the routine dismissal of citations.   One effective way to comply with the Rule is to have an officer hand-deliver the citations to the circuit clerk every Monday, Wednesday and Friday.  Upon delivery, the officer should have the clerk sign a receipt that lists which citations   were delivered and the date of delivery.

Hand delivery three times a week may be a substantial burden for small or rural public bodies.  If so, police departments should mail the citations every Monday, Wednesday and Friday using certified mail, or some other method that provides proof of mailing.  A record should be kept  of the mailed citations that includes the date on which the citations were mailed.

Please note that the Geiler Court held Friday citations that were not delivered until Monday violated Rule 522’s the 48-hour rule. Thus, in light of Geiler, police departments should also consider mailing  on Saturday any citations issued on Friday, in addition to either hand-delivering or mailing citations every Monday, Wednesday and Friday.

With receipts and records of mailing in-hand, public bodies can prevent future ticket dismissals for alleged violations of Rule 522.

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.