7-28-14; To the Labors of Motherhood May Come New Civil Rights--Illinois and Federal; EEOC Issues New Guides about Rights of Pregnant Workers; IL WC Medical Fee Schedule Goes Up and much more

Synopsis: To the Labors of Motherhood May Come New Illinois Civil Rights Protections and More Challenges for Business and All Illinoisans.


Editor’s comment: HB 8 was hurriedly rushed through the IL House and Senate and on June 26, 2014 it was sent for Gov. Quinn’s signature. If he signs it, the bill won’t become effective until January 1, 2015. In our view, it is more unneeded regulations for Illinois business. We feel the public relations impact for our legislators to “take care of pregnant women” was too hard for them to turn down. You may note 32 legislative sponsors of this bill were women. The bill arguably promotes workplace fairness for pregnant workers by requiring employers to make reasonable accommodation for conditions related to pregnancy, childbirth, lactation and related conditions, unless the employer can demonstrate the reasonable accommodation would impose an undue hardship on the ordinary operation of the employer’s business—just as employers do for reasonable accommodations caused by other conditions.


What Was Wrong with Federal ADA and PDA?


The bill is supposedly modeled after the Americans with Disabilities Act, the Pregnancy Discrimination Act and analogous state law. We ask the rhetorical question, why not simply rely on the ADA and PDA? Proponents assert HB 8 was necessary because state and federal law and enforcement was supposedly unclear—as you will see below, the EEOC just changed their guidelines. Proponents further claim courts and employers continued to deny pregnant workers the kinds of job modifications they routinely offered to other employees who are similar in their ability or inability to work—we have no idea what rulings were being referred to. We know of one jury verdict against a well-known Chicago restaurant where a pregnant employee recovered $300,000 along with her attorney’s fees and costs for alleged employment discrimination due to pregnancy. There is no question Illinois state employment laws and federal law require employers to provide pregnant workers the same treatment and benefits provided other workers who require temporary accommodations.


Little Illinois Companies and Large Illinois Employers May Have to Learn and Implement This New Legislation


In our view, this bill may apply to your home-based nanny, cleaning lady, babysitter, dog-walker, any single person you hire to work for you. If it becomes law, the new Public Act amends the Illinois Human Rights Act and defines "pregnancy" as pregnancy, childbirth, or related conditions. It now defines an "employer" to include any person employing one or more employees when a complainant alleges civil rights violation due to unlawful discrimination based upon pregnancy. It doesn’t make a distinction between part-time or full-time workers.


The provisions regarding pregnancy are applicable regardless of the source of the employee's inability to work or employment classification or status, including part-time, full-time, or probationary. The bill also provides it is a civil rights violation for an employer, with respect to pregnancy, childbirth, or a related condition:


(1)  not to make reasonable accommodations, if so requested, unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer;

(2)  to deny employment opportunities or benefits to or take adverse action against an otherwise qualified job applicant or employee;

(3)  to require a job applicant or employee to accept an accommodation the applicant or employee chooses not to accept; or

(4)  to require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided.


Can You “Misclassify” a Pregnant Worker to Try to Avoid the New Law?


One potential way around the new law might be to hire a “business” to provide small-scale services needed, like house-cleaning and dog-walking. What we mean by “misclassify” is to treat anyone you hire as a separate company. When you hire one person to perform a service like housekeeping, can you treat them as a “business” and issue a 1099 for payments made to them. What if the “business” you hire is a sole proprietor? We aren’t recommending creating ruses or participating in fraud to avoid the new laws—we just want our readers to better understand if you hire one worker, the new state law appears to come with employment status. On the other hand, if you hire a business to provide a service for you, the business is supposed to reasonable accommodate the pregnant worker. We have no idea is a sole proprietor of a dog-walking business has to accommodate herself if she is a business versus just a dog-walker! For larger companies, you risk the IL Department of Labor coming after you when you misclassify workers.


Do the Civil Rights Protections for Pregnant Workers Start When They Learn They are Pregnant and End with Childbirth?


No—the protections start when reasonable accommodation of pregnancy starts and end with the cessation of lactation or other medical sequalae of the pregnancy. For some mothers, this might be several years. If you aren’t sure about whether you need to accommodate at any time, send a reply and a KCB&A defense team member will give you our best thoughts.


Can an Illinois Business or Individual “Drug Test” to Confirm Pregnancy?


Some time ago, we had a client who wanted to terminate an ineffective worker—when the client talked to her worker, the troubled employee indicated she was pregnant. Our client tried to reasonably accommodate the worker for several months to then have the employee quit without notice and basically disappear. Our client felt she was bamboozled and she felt the employee completely faked her claimed pregnant status. The client asked a reasonable question—in the future, if another worker advised of pregnant status, could the client ask the employee to drug test to prove she was pregnant? It would seem reasonable under either state or federal law for documentation of status to be part of due diligence in handling all claims.


We have asked this question of many of our closest readers and friends and the uniform answer was not to require a pregnancy test. Instead, our readers/friends of the firm felt a much better approach was to ask the worker to provide a note from an OB-GYN or other similar physician to confirm


·         The fact of pregnant status and

·         The needed reasonable accommodation due to that status.


In taking that approach, you basically are following a much more effective model or process. You are also setting up a path for continued documentation of accommodation needs. We are happy to consider your best thoughts on this issue.


An IL Employer Can’t Force a Pregnant Employee to Stay Off Work


We know the City of Chicago sends pregnant workers in some departments home from work for a full year, whether the worker wants to work with accommodation or not. The reason you don’t hear much about this practice in the press/media is relatively few women will turn down and fight over a year off work with full pay and benefits. Both state and federal law make such practices an actual or potential violation of a pregnant worker’s civil rights. We hope City administrators stop that practice and try instead to keep hard-working employees in jobs with accommodation.


IL Employers Will Have to Change Your Workplace Notices and Handbooks Next Year


It will be a civil rights violation for an IL employer to fail to post, keep posted, or fail to include in any employee handbook information concerning an employee's rights under the Act, a notice, to be prepared or approved by the Department of Human Rights, summarizing the requirements of the Act and information pertaining to the filing of a charge, including the right to be free from unlawful discrimination and the right to certain reasonable accommodations. The bill also provides it is a civil rights violation to retaliate against a person because he or she has requested, attempted to request, used, or attempted to use a reasonable accommodation. HB 8 does not require employers to create new jobs or to fire, transfer an employee with more seniority, or promote an unqualified employee. The theory is to provide pregnant employees with reasonable, temporary accommodations to increase worker productivity, retention, and morale, decreases re-training costs, and reduces health care costs associated with pregnancy complications.


As we outline above, the bill was sent to the Governor on June 26, 2014. Assuming the Governor signs it and every indication is he will, the bill will become effective on January 1, 2015. If you need help implementing the new law or seek assistance with defending pregnancy claims, contact our defense team leader Brad Smith at bsmith@keefe-law.com. To read the new law, click here:




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Synopsis: The U.S. Equal Opportunity Commission has released new guidelines for the enforcement of laws prohibiting workplace discrimination against pregnant women.

Editor’s comment: These are the first new federal guidelines on pregnancy discrimination in more than 30 years. The document, titled EEOC Enforcement Guidance on Pregnancy Discrimination Related Issues, seeks to clarify or better outline federal rules on discrimination against pregnant workers under both the Pregnancy Discrimination Act and the Americans with Disabilities Act.

The EEOC is responding to an increase in Pregnancy Discrimination charges/complaints; They also feel the Federal Courts are leaving both sides confused in their rulings

The guidelines were issued following a rising number of complaints regarding pregnancy discrimination in the workplace, as well as differing interpretations of existing law by different courts. The U.S. Supreme Court recently agreed to hear a pregnancy discrimination case during its October 2014 term, in part because of lower courts' differing views of the existing law.

New EEOC Guidelines Clarify Their View of Pregnancy Discrimination

The EEOC's new guidelines seek to make things fairly clear, emphasizing workplace discrimination against pregnant women is a prohibited form of sex discrimination. For U.S. employers and risk managers, please remember the EEOC has virtually unlimited funds and can and will sue employers over their view of what should be U.S. law. While most of these charges/claims settle, the EEOC then can force employers to accept and pay for discrimination counseling for years to come. They will also audit to insure you are complying.

Here are the important facets of the new guidelines:

Ø  Pregnancy-related conditions are considered disabilities under the ADA, which require employers to provide reasonable accommodations as they would for any other medical disability.

Ø  Employers may not fire, demote, or refuse to hire women based on a current or potential future pregnancy or any other pregnancy-related medical condition.

Ø  Lactation is a medical condition and has to be afforded "reasonable break time" to address lactation-related needs.

Ø  Women may not be forced to take leave during or following a pregnancy if they can still adequately perform their assigned tasks.

Ø  Women may not be treated differently or restricted from doing certain jobs, such as those that may expose them to hazardous chemicals, solely based on their ability to become pregnant.

Ø  An employer may not inquire about whether a woman intends to become pregnant, as such inquiries will be generally regarded as evidence of pregnancy discrimination in the event of any future unfavorable action.

The new EEOC guidelines on pregnancy discrimination take effect immediately, and can be read online in their entirety at the EEOC's websitehttp://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm


Synopsis: The Illinois WC Commission Increases WC Fee Schedule Payment for Medical Evaluation and Management Procedures Such as Office Visits. Analysis by Pankhuri Parti, J.D.


Editor’s comment: While the purpose of the Order seems innocuous enough – ensuring the injured workers still have access to doctors willing to treat their work injuries, we fear the consequence of this new order may be to overburden the employers, who already face an uphill battle in the Petitioner friendly workers’ compensation system of Illinois.


How the IL WC Medical Fee Schedule at the Illinois Workers’ Compensation Commission Works?


Through the 2005-2006 Amendments of the IL WC Act, the IL legislature ordered the IL WC Commission to create fee schedules for treatment provided on or after February 1, 2006. Under this approach the payment to the medical provider would be the lesser amount of either the actual charge or the amount deemed appropriate in the fee schedule. Section 8.2 of the Workers’ Compensation Act stated clearly the fee schedule set the "maximum allowable payment;" and the employer was expected to pay to the medical provider either the actual amount billed or the fee schedule amount, whichever was less. Inherent in this approach was the liberty granted to the parties – the medical provider and the employer – to contract for amounts different than the fee schedule rates and if the contracted/billed amount was less than the fee schedule rate then the employer would be bound to pay that amount. In all these situations the amount charged, the fee schedule amount, and the contracted amount, would represent full payment for the services rendered by the medical professional.


It is important to note the fee schedule only affects the amount of payment made to the medical provider by the employer. It has nothing to do with the question of whether or not the treatment being undergone by Petitioner is reasonable and necessary and covered by workers’ compensation. 


At the time the fee schedule was first implemented the maximum allowable payment was deemed to be 90% of the 80th percentile of charges and fees as determined by the IL WC Commission and based on the information on the provider billed amounts obtained from employers’ and insurers’ national database. The Commission was then to adjust these charges by the Consumer Price Index-U or Consumer Price Index-M. As a result of the legislation the Commission established fee schedules for procedures, treatments, and services for hospital inpatient, hospital outpatient, emergency room and trauma, ambulatory surgical treatment centers, and professional services. For the services for which the fees could not be calculated, the fees were set, by default, at 76% of the charged amount.


Changes in the IL WC Fee Schedule System over the Years


On February 2009 the IL WC Commission created new fee schedules for ambulatory surgical treatment centers, hospital outpatient radiology, pathology, and laboratory, physical medicine and rehabilitation services, and surgical services, and rehabilitation hospitals. Based on its work with the Workers’ Compensation Medical Fee Advisory Board, the Commission decided the change the reimbursement methods for certain services but later repealed this changed. Instead it was decided the treatment would be paid at the 65%-of-charge rule.


On June 28, 2011 Governor Quinn signed the House Bill 1698 and one of the provisions in the bill reduced all fee schedules by 30% and reduced the default pay 76% of charge to pay 53.2% of charge instead. Doctors and hospitals in our state started screaming at their lobbyists over these dramatic cuts. However, many observers still feel the discounted values remained higher than group health reimbursements.


On July 16, 2014 the Illinois WC Commission passed an order to increase the reimbursements for certain identified services to the recommended levels so as to increase the injured employees’ access to health care.


The New IWCC Order and Recommended Changes


The Commission passed this order under Section 8.2(b) of the Act which allows the Commission to change the CPI-U if it finds there is a significant limitation on access to quality health care in either a specific field or geographical location. The order was based on a December 2013 memo which highlighted concerns about some Illinois Workers’ Compensation fee schedule payments, claiming they were at rates which might limit access to medical care. The memo raised the possibility of healthcare providers ceasing to treat injured workers where payments were unreasonably low and identified the possible reasons as the influx of millions of new insureds into the healthcare market and the Affordable Care Act.


The analysis on which the decision was reached compared the fee schedule amounts after the 30% reduction in September 2011 with payments made to providers under Medicare and noted fee schedule amounts for many Evaluation and Management codes were less than that provided under Medicare. Additionally, the commercial payments were significantly above those deemed as appropriate in the fee schedule. Because the commercial payments were so much higher than the fee schedule and the Medicare payments were also higher in many instances, the memo concluded there was a reasonable chance of primary care physicians ceasing to treat injured workers when they could so easily fill their schedules with better insured patients.


As a result the purpose of the changes was to bring the payments under the fee schedule for evaluation and management services to a level comparable to Medicare. Some of the evaluation and management procedures identified for the purposes of increasing the reimbursements rates are: office/outpatient visit new, office/outpatient visit established, home visit new patient, and home visit established patient. The order accepts the proposed CPI percentage increase, the proposed dollar increase, and the proposed fee schedule amount recommended by the memo. The IWCC memo detailing the changes can be accessed at http://www.iwcc.il.gov/EMorder.pdf


We appreciate your thoughts and comments. Please post them on our award-winning blog. This article was researched and written by Pankhuri Parti, J.D. She can be reached for information or assistance with this and other defense issues atpparti@keefe-law.com.