HB4053 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4053

 

Introduced 3/17/2021, by Rep. Angelica Guerrero-Cuellar

 

SYNOPSIS AS INTRODUCED:
 
775 ILCS 5/2-102  from Ch. 68, par. 2-102

    Amends the Employment Article of the Illinois Human Rights Act. Provides that it is a civil rights violation for an employer to: refuse to allow an employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period, not to exceed 4 months, and thereafter return to work; refuse to maintain and pay for coverage for an eligible employee disabled by pregnancy, childbirth, or a related medical condition who takes leave under a group health plan, for the duration of the leave, not to exceed 4 months over the course of a 12-month period, commencing on the date the leave taken begins, at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave; or refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.


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A BILL FOR

 

HB4053LRB102 12130 LNS 17467 b

1    AN ACT concerning human rights.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Human Rights Act is amended by
5changing Section 2-102 as follows:
 
6    (775 ILCS 5/2-102)  (from Ch. 68, par. 2-102)
7    Sec. 2-102. Civil rights violations - employment. It is a
8civil rights violation:
9        (A) Employers. For any employer to refuse to hire, to
10    segregate, to engage in harassment as defined in
11    subsection (E-1) of Section 2-101, or to act with respect
12    to recruitment, hiring, promotion, renewal of employment,
13    selection for training or apprenticeship, discharge,
14    discipline, tenure or terms, privileges or conditions of
15    employment on the basis of unlawful discrimination or
16    citizenship status. An employer is responsible for
17    harassment by the employer's nonmanagerial and
18    nonsupervisory employees only if the employer becomes
19    aware of the conduct and fails to take reasonable
20    corrective measures.
21        (A-5) Language. For an employer to impose a
22    restriction that has the effect of prohibiting a language
23    from being spoken by an employee in communications that

 

 

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1    are unrelated to the employee's duties.
2        For the purposes of this subdivision (A-5), "language"
3    means a person's native tongue, such as Polish, Spanish,
4    or Chinese. "Language" does not include such things as
5    slang, jargon, profanity, or vulgarity.
6        (A-10) Harassment of nonemployees. For any employer,
7    employment agency, or labor organization to engage in
8    harassment of nonemployees in the workplace. An employer
9    is responsible for harassment of nonemployees by the
10    employer's nonmanagerial and nonsupervisory employees only
11    if the employer becomes aware of the conduct and fails to
12    take reasonable corrective measures. For the purposes of
13    this subdivision (A-10), "nonemployee" means a person who
14    is not otherwise an employee of the employer and is
15    directly performing services for the employer pursuant to
16    a contract with that employer. "Nonemployee" includes
17    contractors and consultants. This subdivision applies to
18    harassment occurring on or after the effective date of
19    this amendatory Act of the 101st General Assembly.
20        (B) Employment agency. For any employment agency to
21    fail or refuse to classify properly, accept applications
22    and register for employment referral or apprenticeship
23    referral, refer for employment, or refer for
24    apprenticeship on the basis of unlawful discrimination or
25    citizenship status or to accept from any person any job
26    order, requisition or request for referral of applicants

 

 

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1    for employment or apprenticeship which makes or has the
2    effect of making unlawful discrimination or discrimination
3    on the basis of citizenship status a condition of
4    referral.
5        (C) Labor organization. For any labor organization to
6    limit, segregate or classify its membership, or to limit
7    employment opportunities, selection and training for
8    apprenticeship in any trade or craft, or otherwise to
9    take, or fail to take, any action which affects adversely
10    any person's status as an employee or as an applicant for
11    employment or as an apprentice, or as an applicant for
12    apprenticeships, or wages, tenure, hours of employment or
13    apprenticeship conditions on the basis of unlawful
14    discrimination or citizenship status.
15        (D) Sexual harassment. For any employer, employee,
16    agent of any employer, employment agency or labor
17    organization to engage in sexual harassment; provided,
18    that an employer shall be responsible for sexual
19    harassment of the employer's employees by nonemployees or
20    nonmanagerial and nonsupervisory employees only if the
21    employer becomes aware of the conduct and fails to take
22    reasonable corrective measures.
23        (D-5) Sexual harassment of nonemployees. For any
24    employer, employee, agent of any employer, employment
25    agency, or labor organization to engage in sexual
26    harassment of nonemployees in the workplace. An employer

 

 

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1    is responsible for sexual harassment of nonemployees by
2    the employer's nonmanagerial and nonsupervisory employees
3    only if the employer becomes aware of the conduct and
4    fails to take reasonable corrective measures. For the
5    purposes of this subdivision (D-5), "nonemployee" means a
6    person who is not otherwise an employee of the employer
7    and is directly performing services for the employer
8    pursuant to a contract with that employer. "Nonemployee"
9    includes contractors and consultants. This subdivision
10    applies to sexual harassment occurring on or after the
11    effective date of this amendatory Act of the 101st General
12    Assembly.
13        (E) Public employers. For any public employer to
14    refuse to permit a public employee under its jurisdiction
15    who takes time off from work in order to practice his or
16    her religious beliefs to engage in work, during hours
17    other than such employee's regular working hours,
18    consistent with the operational needs of the employer and
19    in order to compensate for work time lost for such
20    religious reasons. Any employee who elects such deferred
21    work shall be compensated at the wage rate which he or she
22    would have earned during the originally scheduled work
23    period. The employer may require that an employee who
24    plans to take time off from work in order to practice his
25    or her religious beliefs provide the employer with a
26    notice of his or her intention to be absent from work not

 

 

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1    exceeding 5 days prior to the date of absence.
2        (E-5) Religious discrimination. For any employer to
3    impose upon a person as a condition of obtaining or
4    retaining employment, including opportunities for
5    promotion, advancement, or transfer, any terms or
6    conditions that would require such person to violate or
7    forgo a sincerely held practice of his or her religion
8    including, but not limited to, the wearing of any attire,
9    clothing, or facial hair in accordance with the
10    requirements of his or her religion, unless, after
11    engaging in a bona fide effort, the employer demonstrates
12    that it is unable to reasonably accommodate the employee's
13    or prospective employee's sincerely held religious belief,
14    practice, or observance without undue hardship on the
15    conduct of the employer's business.
16        Nothing in this Section prohibits an employer from
17    enacting a dress code or grooming policy that may include
18    restrictions on attire, clothing, or facial hair to
19    maintain workplace safety or food sanitation.
20        (F) Training and apprenticeship programs. For any
21    employer, employment agency or labor organization to
22    discriminate against a person on the basis of age in the
23    selection, referral for or conduct of apprenticeship or
24    training programs.
25        (G) Immigration-related practices.
26            (1) for an employer to request for purposes of

 

 

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1        satisfying the requirements of Section 1324a(b) of
2        Title 8 of the United States Code, as now or hereafter
3        amended, more or different documents than are required
4        under such Section or to refuse to honor documents
5        tendered that on their face reasonably appear to be
6        genuine; or
7            (2) for an employer participating in the E-Verify
8        Program, as authorized by 8 U.S.C. 1324a, Notes, Pilot
9        Programs for Employment Eligibility Confirmation
10        (enacted by PL 104-208, div. C title IV, subtitle A) to
11        refuse to hire, to segregate, or to act with respect to
12        recruitment, hiring, promotion, renewal of employment,
13        selection for training or apprenticeship, discharge,
14        discipline, tenure or terms, privileges or conditions
15        of employment without following the procedures under
16        the E-Verify Program.
17        (H) (Blank).
18        (I) Pregnancy. For an employer to refuse to hire, to
19    segregate, or to act with respect to recruitment, hiring,
20    promotion, renewal of employment, selection for training
21    or apprenticeship, discharge, discipline, tenure or terms,
22    privileges or conditions of employment on the basis of
23    pregnancy, childbirth, or medical or common conditions
24    related to pregnancy or childbirth. Women affected by
25    pregnancy, childbirth, or medical or common conditions
26    related to pregnancy or childbirth shall be treated the

 

 

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1    same for all employment-related purposes, including
2    receipt of benefits under fringe benefit programs, as
3    other persons not so affected but similar in their ability
4    or inability to work, regardless of the source of the
5    inability to work or employment classification or status.
6        (I-5) Pregnancy; disability and health care coverage.
7            (1) For an employer to refuse to allow an employee
8        disabled by pregnancy, childbirth, or a related
9        medical condition to take a leave for a reasonable
10        period, not to exceed 4 months, and thereafter return
11        to work. An employer may require an employee who plans
12        to take a leave pursuant to this subdivision to give
13        the employer reasonable notice of the date the leave
14        shall commence and the estimated duration of the
15        leave.
16            (2) For an employer to refuse to maintain and pay
17        for coverage for an eligible employee who takes leave
18        pursuant to paragraph (1) under a group health plan,
19        as defined in Section 5000(b)(1) of the Internal
20        Revenue Code of 1986, for the duration of the leave,
21        not to exceed 4 months over the course of a 12-month
22        period, commencing on the date the leave taken under
23        paragraph (1) begins, at the level and under the
24        conditions that coverage would have been provided if
25        the employee had continued in employment continuously
26        for the duration of the leave. Nothing in this

 

 

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1        paragraph shall preclude an employer from maintaining
2        and paying for coverage under a group health plan
3        beyond 4 months. If the employer is a State agency, the
4        collective bargaining agreement shall govern with
5        respect to the continued receipt by an eligible
6        employee of the health care coverage.
7        The Department may adopt rules to implement this
8    subdivision.
9        (J) Pregnancy; reasonable accommodations.
10            (1) If after a job applicant or employee,
11        including a part-time, full-time, or probationary
12        employee, requests a reasonable accommodation, for an
13        employer to not make reasonable accommodations for any
14        medical or common condition of a job applicant or
15        employee related to pregnancy or childbirth, unless
16        the employer can demonstrate that the accommodation
17        would impose an undue hardship on the ordinary
18        operation of the business of the employer. The
19        employer may request documentation from the employee's
20        health care provider concerning the need for the
21        requested reasonable accommodation or accommodations
22        to the same extent documentation is requested for
23        conditions related to disability if the employer's
24        request for documentation is job-related and
25        consistent with business necessity. The employer may
26        require only the medical justification for the

 

 

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1        requested accommodation or accommodations, a
2        description of the reasonable accommodation or
3        accommodations medically advisable, the date the
4        reasonable accommodation or accommodations became
5        medically advisable, and the probable duration of the
6        reasonable accommodation or accommodations. It is the
7        duty of the individual seeking a reasonable
8        accommodation or accommodations to submit to the
9        employer any documentation that is requested in
10        accordance with this paragraph. Notwithstanding the
11        provisions of this paragraph, the employer may require
12        documentation by the employee's health care provider
13        to determine compliance with other laws. The employee
14        and employer shall engage in a timely, good faith, and
15        meaningful exchange to determine effective reasonable
16        accommodations.
17            (2) For an employer to deny employment
18        opportunities or benefits to or take adverse action
19        against an otherwise qualified job applicant or
20        employee, including a part-time, full-time, or
21        probationary employee, if the denial or adverse action
22        is based on the need of the employer to make reasonable
23        accommodations to the known medical or common
24        conditions related to the pregnancy or childbirth of
25        the applicant or employee.
26            (3) For an employer to require a job applicant or

 

 

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1        employee, including a part-time, full-time, or
2        probationary employee, affected by pregnancy,
3        childbirth, or medical or common conditions related to
4        pregnancy or childbirth to accept an accommodation
5        when the applicant or employee did not request an
6        accommodation and the applicant or employee chooses
7        not to accept the employer's accommodation.
8            (4) For an employer to require an employee,
9        including a part-time, full-time, or probationary
10        employee, to take leave under any leave law or policy
11        of the employer if another reasonable accommodation
12        can be provided to the known medical or common
13        conditions related to the pregnancy or childbirth of
14        an employee. No employer shall fail or refuse to
15        reinstate the employee affected by pregnancy,
16        childbirth, or medical or common conditions related to
17        pregnancy or childbirth to her original job or to an
18        equivalent position with equivalent pay and
19        accumulated seniority, retirement, fringe benefits,
20        and other applicable service credits upon her
21        signifying her intent to return or when her need for
22        reasonable accommodation ceases, unless the employer
23        can demonstrate that the accommodation would impose an
24        undue hardship on the ordinary operation of the
25        business of the employer.
26        For the purposes of this subdivision (J), "reasonable

 

 

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1    accommodations" means reasonable modifications or
2    adjustments to the job application process or work
3    environment, or to the manner or circumstances under which
4    the position desired or held is customarily performed,
5    that enable an applicant or employee affected by
6    pregnancy, childbirth, or medical or common conditions
7    related to pregnancy or childbirth to be considered for
8    the position the applicant desires or to perform the
9    essential functions of that position, and may include, but
10    is not limited to: more frequent or longer bathroom
11    breaks, breaks for increased water intake, and breaks for
12    periodic rest; private non-bathroom space for expressing
13    breast milk and breastfeeding; seating; assistance with
14    manual labor; light duty; temporary transfer to a less
15    strenuous or hazardous position; the provision of an
16    accessible worksite; acquisition or modification of
17    equipment; job restructuring; a part-time or modified work
18    schedule; appropriate adjustment or modifications of
19    examinations, training materials, or policies;
20    reassignment to a vacant position; time off to recover
21    from conditions related to childbirth; and leave
22    necessitated by pregnancy, childbirth, or medical or
23    common conditions resulting from pregnancy or childbirth.
24        For the purposes of this subdivision (J), "undue
25    hardship" means an action that is prohibitively expensive
26    or disruptive when considered in light of the following

 

 

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1    factors: (i) the nature and cost of the accommodation
2    needed; (ii) the overall financial resources of the
3    facility or facilities involved in the provision of the
4    reasonable accommodation, the number of persons employed
5    at the facility, the effect on expenses and resources, or
6    the impact otherwise of the accommodation upon the
7    operation of the facility; (iii) the overall financial
8    resources of the employer, the overall size of the
9    business of the employer with respect to the number of its
10    employees, and the number, type, and location of its
11    facilities; and (iv) the type of operation or operations
12    of the employer, including the composition, structure, and
13    functions of the workforce of the employer, the geographic
14    separateness, administrative, or fiscal relationship of
15    the facility or facilities in question to the employer.
16    The employer has the burden of proving undue hardship. The
17    fact that the employer provides or would be required to
18    provide a similar accommodation to similarly situated
19    employees creates a rebuttable presumption that the
20    accommodation does not impose an undue hardship on the
21    employer.
22        No employer is required by this subdivision (J) to
23    create additional employment that the employer would not
24    otherwise have created, unless the employer does so or
25    would do so for other classes of employees who need
26    accommodation. The employer is not required to discharge

 

 

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1    any employee, transfer any employee with more seniority,
2    or promote any employee who is not qualified to perform
3    the job, unless the employer does so or would do so to
4    accommodate other classes of employees who need it.
5        (K) Notice.
6            (1) For an employer to fail to post or keep posted
7        in a conspicuous location on the premises of the
8        employer where notices to employees are customarily
9        posted, or fail to include in any employee handbook
10        information concerning an employee's rights under this
11        Article, a notice, to be prepared or approved by the
12        Department, summarizing the requirements of this
13        Article and information pertaining to the filing of a
14        charge, including the right to be free from unlawful
15        discrimination, the right to be free from sexual
16        harassment, and the right to certain reasonable
17        accommodations. The Department shall make the
18        documents required under this paragraph available for
19        retrieval from the Department's website.
20            (2) Upon notification of a violation of paragraph
21        (1) of this subdivision (K), the Department may launch
22        a preliminary investigation. If the Department finds a
23        violation, the Department may issue a notice to show
24        cause giving the employer 30 days to correct the
25        violation. If the violation is not corrected, the
26        Department may initiate a charge of a civil rights

 

 

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1        violation.
2        (L) Family care and medical leave. For any employer to
3    refuse to grant a request by any employee with more than 12
4    months of service with the employer, and who has at least
5    1,250 hours of service with the employer during the
6    previous 12-month period, to take up to a total of 12
7    workweeks in any 12-month period for family care and
8    medical leave. Family care and medical leave requested
9    pursuant to this subdivision shall not be deemed to have
10    been granted unless the employer provides the employee,
11    upon granting the leave request, a guarantee of employment
12    in the same or a comparable position upon the termination
13    of the leave.
14        The Department may adopt rules to implement this
15    subdivision.
16        For the purposes of this subdivision, "family care and
17    medical leave" means:
18            (i) leave for reason of the birth of a child of the
19        employee or the placement of a child with an employee
20        in connection with the adoption or foster care of the
21        child by the employee;
22            (ii) leave to care for a child, parent,
23        grandparent, grandchild, sibling, spouse, or domestic
24        partner who has a serious health condition;
25            (iii) leave because of an employee's own serious
26        health condition that makes the employee unable to

 

 

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1        perform the functions of the position of that
2        employee, except for leave taken for disability on
3        account of pregnancy, childbirth, or a related medical
4        condition; or
5            (iv) leave because of a qualifying exigency
6        related to the covered active duty or call to covered
7        active duty of an employee's spouse, domestic partner,
8        child, or parent in the Armed Forces of the United
9        States.
10(Source: P.A. 100-100, eff. 8-11-17; 100-588, eff. 6-8-18;
11101-221, eff. 1-1-20.)