Reminder: Illinois Employers Must Complete Annual Anti-Harassment Training Requirement By End of the Year

Author: Becky Canary-King

Illinois’ Workplace Transparency Act requires that all employees complete sexual harassment prevention training on an annual basis. The law applies to all employees working in the state, including short-time, part-time, and remote employees. LP offers a remote training program that is compliant with state requirements for employees and managers. Alternatively, employers can conduct the training on their own using IDHR’s Training Program.

If you would like more information about LP’s program or would like to schedule a session, please contact: EmploymentLaw@lplegal.com.

OSHA Releases COVID-19 Vaccination Rule For Private Employers – What You Need to Know

Author: Becky Canary-King

The Biden administration has finally released its long-awaited emergency temporary standard (“ETS”) on mandatory vaccination requirements in the workplace. As anticipated, the ETS requires that employers with 100 or more employees either establish a mandatory vaccination policy or a vaccination/testing policy.

It’s important to note that the ETS is going to be challenged in court – so while employers should certainly get started in preparing for the new requirements, their future is uncertain. 

In the meantime, here are answers to the key questions that employers need to know:

Are employers required to mandate vaccines?

No. Under the ETS, employers with 100 or more employees must either establish a mandatory vaccination policy or establish a policy under which employees must choose either to be fully vaccinated or provide proof of regular testing and wear a face mask in the workplace.  The vaccination/testing policy must be implemented by January 4, 2022.

How do employers determine whether they are covered?

The ETS covers all private employers with 100 or more employees. To determine the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees count towards the company total, but independent contractors do not. 

We anticipate questions regarding whether related companies’ will be considered the same or separate for purposes of counting to 100 employees, but we have not yet received specific guidance on this question.  In the meantime, we will need to look at the facts and circumstances and tests under other employment laws (such as the FMLA) to determine whether affiliated companies’ headcounts need to be aggregated.

Which employees are covered?

The ETS generally covers all employees of covered employers except those who (1) do not report to a workplace where other individuals such as coworkers or customers are present, (2) work from home, or (3) work exclusively outdoors. These employees still count toward the 100-employee threshold, though.

What is required for a mandatory vaccination policy?

A mandatory vaccination policy must require vaccination of all covered employees, including vaccination of all new employees as soon as practicable, other than those employees for whom a vaccine is medically contraindicated or who are legally entitled to a reasonable accommodation under federal law.

What is required for employees who get vaccinated?

The ETS requires employers to support vaccination by providing employees four hours’ paid time off at the employee’s regular rate of pay to receive the vaccine (covering both travel time and the actual time receiving the vaccine). Employers must also provide reasonable time and paid sick leave to recover from side effects following each vaccination dose. This requirement is effective immediately.

Are employers required to pay for testing?

The ETS does not require an employer to pay for the costs associated with testing. However, payment for testing may be required by other laws, regulations, or collective bargaining agreements.

When is the deadline to comply?

Covered employers have until January 4, 2022 to ensure their covered employees are fully vaccinated or submit to weekly testing. Beginning December 5, 2021, covered employers must ensure that unvaccinated employees wear masks in the workplace.

If you have any other questions regarding OSHA COVID requirements or other COVID-related issues, a member of our Labor & Employment Group would be happy to speak with you.

Changes Coming to the Illinois Health Care Right of Conscience Act to Close COVID loophole… in June 2022

Author: Becky Canary-King

The Illinois legislature has approved an amendment to the Health Care Right of Conscience Act (“HCRC”) which would limit employees’ ability to use the law to avoid workplace vaccination mandates.

HCRC, which was enacted in 1977, prohibits discrimination against individuals for their “conscientious refusal” to receive “any particular form of health care services contrary to his or her conscience.” The Act also makes it unlawful for employers to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant for the applicant’s refusal to receive any form of health care services contrary to his or her conscience.

The original intent of the bill was to allow health care providers to refuse to provide contraceptives or abortion services if it violated their conscience. However, some individuals have argued that the broad language of HCRC provides a shield for employees to avoid COVID-19 testing and vaccination mandates.

The Amendment would add language stating that it is not a violation of the Act to institute and enforce COVID-19 requirements in the workplace and other institutions. The proposal does not interfere with employees’ right to receive reasonable accommodations for their sincerely held religious beliefs.

Governor J.B. Pritzker is expected to sign the amendment, which would go into effect in June 2022.

Illinois Law on Non-Competes and Non-Solicits is Changing January 1st. Are You Ready?

Author: Laura Friedel

Amendments to the Illinois Freedom to Work Act mean that for restrictive covenant agreements signed on or after January 1, 2022:

  • Employees making $45k or less per year can’t be subject to non-solicits and employees making $75k or less per year can’t be subject to non-competes
  • “Adequate Consideration” must be provided (either 2 years’ employment after signing or other adequate consideration)
  • Enforceability will depend on the particular facts at issue, including whether the employee was exposed to customer and employee relationships, the near-permanence of customer relationships, the acquisition, use and knowledge of confidential information, and the scope of the restriction (time, geography and scope of activity)
  • Blue-penciling (court revising provision to make it enforceable) is still permitted but courts need to consider a number of factors, including whether the restrictions as written were a good faith effort to protect legitimate business interests, and won’t wholly rewrite covenants
  • And perhaps most critically…. for the agreement to be enforceable, the employee must be given 14 days to consider the agreement and be told to consult with an attorney

These changes mean that companies who have their Illinois employees sign restrictive covenants must revise their templates. There are two ways we can help you get ready:

Option 1: Review your template agreements broadly to make sure that you’re meeting the new legal requirements and optimizing enforceability while protecting the company’s legitimate business interests.

If you’d like to consult with one of our Employment attorneys in this review, please click here and we’ll be in touch.

Option 2: If you’re not interested in doing a larger review, at a bare minimum, it’s critical that you add “magic language” to your templates saying that the employee has had 14 days to consider the agreement and has been advised to talk with an attorney before signing.

If you would like this language to drop into your standard agreements, we are happy to provide it to you free of charge – click here to request.

If you have any questions or would like to talk further about the best way for your company to comply with Illinois’ new requirements, please contact us at EmploymentLaw@lplegal.com – we’d love to help!

EEOC Issues New Guidance on Religious Objections to COVID-19 Vaccine Mandates

Author: Laura Friedel

On Monday, October 25, 2021, the EEOC released much-awaited guidance on how employers should handle employee requests to be exempted from vaccination requirements because of religious beliefs. The new guidance is in the new Section L of the EEOC’s Technical Assistance.  Here are some highlights:

  • Employees must tell their employer if they are requesting an exception to COVID-19 vaccination requirements because of a conflict between that requirement and their sincerely held religious beliefs, practices or observances.  However, they don’t have to use any “magic words” in making their request.
  • Employers should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if the employer has an objective basis for questioning either the nature or the sincerity of a stated belief, they can make a limited factual inquiry and seek supporting information. 
  • The definition of “religion” under Title VII includes both traditional religious beliefs and non-traditional religious beliefs, but it does not include political, social or economic views or personal preferences.  Employees may be asked to explain the nature of their belief that requires the accommodation.
  • Even if an employee’s sincerely held religious belief prohibits them from being vaccinated, the employer can still refuse to provide an exception to a vaccine mandate if it would cause the employer an “undue hardship.”  While the EEOC notes that in many cases it is possible to accommodate employees’ requests for exceptions to a vaccine mandate (for instance, by allowing work-from-home or requiring the employee to take extra measures (such as frequent testing), it also acknowledges that an employer can’t be required to bear more than a “de minimis” cost in accommodating an employee’s religious belief – for instance, if it would impair workplace safety, diminish efficiency or cause coworkers to carry the employee’s share of potentially hazardous or burdensome work.  The key here is that it is a very fact-specific inquiry, so employers should analyze each request individually, rather than setting a broad rule.
  • Just because one employee is granted an exception from a COVID-19 vaccine mandate doesn’t mean that it needs to be granted to others.  Again, the key is the particular facts and circumstances, so employers should look at the employees’ duties, how many people they come into contact with, etc.
  • Even where an employer is required to provide an accommodation, it is not required to provide the particular accommodation requested by the employee.  So if there’s another accommodation available that would allow the employee to perform their duties and would not cause an undue hardship, it can be offered, even if it’s not the accommodation the employee requested.
  • Employers may revisit accommodations based on changed circumstances, but as a best practice, any changes should be discussed with the employee in advance so that alternate accommodations can be considered.

What is clear from the EEOC’s guidance is that requests for exceptions to vaccine requirements for religious reasons need to be considered on a case-by-case basis. It is also important to consider state and local requirements that may limit vaccine mandates.  As such, we recommend consulting with an employment attorney in responding to such requests.

Illinois Mask Mandate: What Employers Need to Know

Author: Becky Canary-King

Effective Monday, August 30, Illinois Governor J.B. Pritzker issued Executive Order 2021-20, which requires all individuals in Illinois age two or older who are able to medically tolerate a face covering to wear a mask in indoor public spaces, regardless of vaccination status. 

Under the Executive Order, “indoor public spaces” include offices and other workplaces, though it does provide that employees may remove their masks when they can consistently maintain six feet of distance (such as in their office or cubicle).

For employers who have returned employees to the workplace, this means that masking requirements should be reviewed or reissued. Any mask policy should require all employees to wear masks while indoors, regardless of vaccination status, except when they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space). The Order contains additional requirements for health care workers, schools, and government facilities. 

Notably, the Order also makes clear that it does not prohibit employers from implementing vaccination or testing requirements for employees, contractors, or other visitors that exceed the requirements of this Executive Order. 

The Labor and Employment Group at Levenfeld Pearlstein regularly helps businesses formulate COVID-19 policies for their workforces. If you’re interested in discussing this Order or any other COVID-19 requirements, please reach out. 

Managing Your Workforce (Legally) in 2022

Please join us for our Annual Labor & Employment complimentary webinar on September 23, 2021 from 12 PM to 1:30 PM CST. This webinar is geared towards human resources professionals, in-house counsel, and business owners and other senior business leaders. We will review developments over the past year and discuss tips to keep your workplace practices moving forward.

Topics Include:

  • Update on Covid-19 in the workplace, including vaccination and mask mandates, leave obligations, accommodations and return to work trends.
  • New state efforts to regulate equal pay through reporting, information sharing and limitations on requests for salary history
  • Increased scrutiny of restrictive covenant agreements, including President Biden’s Executive Order and changes to Illinois law that require action before year end
  • State law developments and trends in the areas of criminal history, data privacy and non-discrimination
  • and more….

CLE & HRCI Credits Available. Register Online.

Now that the Pfizer Vaccine Has Been Given Full Approval, Can Employers Require Employees to Get the COVID-19 Vaccine?

Author: Laura Friedel

Yes, though employers still must consider accommodation requests.

While employers were in a good position requiring vaccines before, the full approval of the Pfizer vaccine makes it even clearer that workplace vaccine mandates are permissible. 

However, employers still have to consider accommodation requests from employees who claim that they can’t get the vaccine for medical reasons, religious reasons, or pregnancy. Whether a refusal to be vaccinated triggers a right to accommodation, and whether allowing an employee to not be vaccinated will depend on the circumstances. Employers have a good argument that having an unvaccinated employee would cause an undue burden and/or direct threat to other employees, and that, as a result, no accommodation is required by law. However, even if making this argument, it’s still important to go through the accommodation process and consider whether there are other steps that could be taken that would allow the employee to remain unvaccinated while not causing the employer an undue burden or creating a direct threat to others. Employers should also check state and local law for relevant requirements.

LP will continue to monitor guidance related to administering the vaccine and update the answer to this question accordingly.

The Illinois Freedom to Work Act – Anticipated Amendments

Author: Jason Hirsh

Non-competes and non-solicits, so-called restrictive covenants, have been at the center of a nationwide discussion for many years. On the one hand, employee-leaning constituencies have advocated for substantial restrictions and/or outlawing restrictive covenants.  Employer groups, on the other hand, have argued that restrictive covenants are necessary to protect important business interests, such as mitigating the risk of unfair competition.  The debate has raged on for years now, and many states have enacted legislation regulating restrictive covenants.    

Illinois is now jumping back into the fray, with the General Assembly passing an amendment to The Illinois Freedom to Work Act (the “Amended Act”).  Should Governor Pritzker sign the Amended Act into law, which is expected, the Amended Act will usher in a new era of restrictive covenant regulation effective January 1, 2022. 

Employers should consider this anticipated change to Illinois law.  Below is a discussion of key points.

Prospective Application

The Amended Act addresses the use of non-competes and non-solicits, both of which are defined in the proposed legislation. Critically, both categories are limited to those “entered into after the effective date of this Amendatory Act of the 102nd General Assembly.” This means the Amended Act will apply prospectively and its application will be limited to employment agreements signed after January 1, 2022.

Salary Thresholds

Throughout the nation, there is a growing view that lower-paid employees should not be saddled with the burden of post-employment restrictive covenants.  The Amended Act joins this movement by prohibiting non-competes, initially, with respect to any employee not earning more than $75,000 and prohibiting non-solicits, initially, with respect to any employee not earning more than $45,000.  These thresholds will increase every five years until 2037:

(a) No employer shall enter into a covenant not to compete with any employee unless the employee’s actual or expected annualized rate of earnings exceeds $75,000 per year. This amount shall increase to $80,000 per year beginning on January 1, 2027, $85,000 per year beginning on January 1, 2032, and $90,000 per year beginning on January 1, 2037. A covenant not to compete entered into in violation of this subsection is void and unenforceable. No employer shall enter into a covenant not to compete with any low-wage employee of the employer.

(b) No employer shall enter into a covenant not to solicit with any employee unless the employee’s actual or expected annualized rate of earnings exceeds $45,000 per year. This amount shall increase to $47,500 per year beginning on January 1, 2027, $50,000 per year beginning on January 1, 2032, and $52,500 per year beginning on January 1, 2037. A covenant not to solicit entered into in violation of this subsection is void and unenforceable. A covenant not to compete entered into between an employer and a low-wage employee is illegal and void

Presumably, the Amended Act would be amended before or around 2037 to implement further adjustments to the compensation thresholds.

Defining Adequate Consideration

Illinois law has traditionally required “adequate consideration” to support enforcement of a non-compete or non-solicit covenant. Since Fifield v. Premier Dealer Services, Inc. was decided in 2013, there has been an active controversy over what actually constitutes “adequate consideration.”  In Fifield, the First District determined that in the absence of other consideration, continued employment was adequate consideration only if the employee was employed for two full years following execution of the agreement containing the restrictive covenant at issue. That ruling was adopted by other courts in Illinois.  But the federal courts largely rejected Fifield, believing that the Illinois Supreme Court would not, if provided an opportunity, adopt the Fifield rule.     

The Amended Act resolves this disagreement by codifying the Fifield rule: “‘[a]dequate consideration’ means (1) the employee worked for the employer for at least 2 years after the employee signed an agreement containing a covenant not to compete or a covenant not to solicit …”

The Amended Act does not, however, limit “adequate consideration” to continued employment, but encompasses other undefined professional or financial benefits – “‘[a]dequate consideration’ means … (2) the employer otherwise provided consideration adequate to support an agreement to not compete or to not solicit, which consideration can consist of a period of employment plus additional professional or financial benefits or merely professional or financial benefits adequate by themselves.” 

The contours of this other consideration are nebulous at best. Nevertheless, if past legal disputes are predictive, other benefits are likely to include cash payments, special training, etc.  What will no doubt be important is that the operative employment agreement is drafted to specifically describe other benefits as part of the employee’s consideration package so the employment agreement clearly reflects that the other benefits are given in return for the restrictive covenant.     

Advising Employees

Employees often sign an employment agreement in the days leading up to employment or on the employee’s first day of employment.  Employers beware: if the Amended Act is signed into law, employers must advise employees in writing to consult with an attorney before agreeing to a non-compete or non-solicit restrictive covenant and provide employees 14 days to review the covenant.  Absent compliance, the covenant is “illegal and void”: 

Ensuring employees are informed about their obligations. A covenant not to compete or a covenant not to solicit is illegal and void unless (1) the employer advises the employee in writing to consult with an attorney before entering into the covenant and (2) the employer provides the employee with a copy of the covenant at least 14 calendar days before the commencement of the employee’s employment or the employer provides the employee with at least 14 calendar days to review the covenant. An employer is in compliance with this Section even if the employee voluntarily elects to sign the covenant before the expiration of the 14-day period.

Employee Remedy

In the past, employers who pursued and lost lawsuits seeking to enforce restrictive covenants typically had no risk of paying the employee’s legal fees. Employers wisely did not draft employment agreements to provide an employee with such a right. The Amended Act changes the landscape, giving employees the statutory right to recover attorney’s fees if the employee “prevails” in a lawsuit seeking to enforce a non-compete or non-solicit: 

Sec. 25. Remedies. In addition to any remedies available under any agreement between an employer and an employee or under any other statute, in a civil action or arbitration filed by an employer (including, but not limited to, a complaint or counterclaim), if an employee prevails on a claim to enforce a covenant not to compete or a covenant not to solicit, the employee shall recover from the employer all costs and all reasonable attorney’s fees regarding such claim to enforce a covenant not to compete or a covenant not to solicit, and the court or arbitrator may award appropriate relief.

In the Amended Act, the Illinois General Assembly empowers the Attorney General to investigate and take action against employers that violate Amended Act:

Sec. 30. Attorney General enforcement. (a) Whenever the Attorney General has reasonable cause to believe that any person or entity is engaged in a pattern and practice prohibited by this Act, the Attorney General may initiate or intervene in a civil action in the name of the People of the State in any appropriate court to obtain appropriate relief.

This is a fairly significant change, requiring reconsideration of aggressive drafting and enforcement of non-competes and non-solicits. 

The Labor & Employment and Litigation Groups at Levenfeld Pearlstein will continue to monitor any developments on the amendments to the Illinois Freedom to Work Act. If you have any specific questions about the Act or its amendments, please do not hesitate to reach out.

This document is not intended to, nor shall it be considered legal advice. If you have any questions regarding your legal rights, you should address the specific matter with your attorney.

Masking Requirements in the Workplace: What Employers Should Consider

Author: Becky Canary-King

The CDC has lifted mask requirements for vaccinated individuals, what does that mean for employers?

Earlier this month, the CDC issued new guidance that Fully Vaccinated individuals can resume activities without wearing a mask or social distancing, except where required by state or local guidelines. Illinois and Chicago subsequently issued new orders affirming that individuals who are Fully Vaccinated are not required to wear a mask. “Fully Vaccinated” means:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Options for Employees

Given these recent changes, Illinois employers now have a choice: to change their workplace rules to allow Fully Vaccinated individuals to go “maskless,” or they can keep current masking requirements in place (either temporarily or for a longer period). Of course, employers with employees outside Illinois need to check state and local requirements for the locations where they have employees.

Employers who wish to allow Fully Vaccinated employees to not wear a mask in the workplace are required to confirm that an employee is, in fact, Fully Vaccinated, prior to allowing them to go maskless.  This can be accomplished by requiring employees to present proof of vaccination or by requiring that employees certify that they are Fully Vaccinated. As a reminder, the information provided to confirm vaccination status needs to be treated as confidential medical information.

Because of issues around confidentiality, we recommend that employers who are not mandating that employees be vaccinated make clear that while Fully Vaccinated individuals may request to go maskless by submitting the requested documentation, it is their choice. In other words, regardless of vaccination status, employees will be required to wear a mask unless they request to go maskless and provide the required documentation. 

Employers should also be aware that the Chicago ordinance that allows Fully Vaccinated employees to go maskless also requires that employers have all employees who are reporting to the workplace to self-certify each day or shift that they are free of COVID-19 symptoms.

Options for Members of the Public

Under these new Illinois standards, employers also have the obligation to “seek to ensure” that customers who are not Fully Vaccinated wear a mask. It’s not clear from the Governor’s order whether this means that employers are required to independently confirm vaccination status prior to allowing a customer or visitor to be maskless in the workplace. Currently, large restaurants and retailers have taken different approaches to public masking requirements, but the fact remains that employers’ general duty to maintain a safe workplace continues to apply and should be considered before changing customer mask requirements. 

Looking Forward

Illinois Governor J.B. Pritzker announced that Illinois plans to fully reopen and enter Phase 5 of its COVID plan on June 11, “barring any significant reversals in our key COVID-19 statewide indicators.” Governor Pritzker has indicated that Illinois will continue following the CDC’s masking guidelines in Phase 5.