The Latest From Chicago: Anti-Retaliation, Fair Workweek, and Food Delivery Disclosures

While warm weather has finally hit Chicago, Mayor Lightfoot, the City Council and Chicago Department of Business Affairs and Consumer Protection (BACP) have not taken a spring break. The below summarizes the latest ordinances, and regulations from the Windy City:

Anti-Retaliation Ordinance

The Chicago City Council passed the COVID-19 Anti-Retaliation Ordinance last week, which prohibits employers from retaliating against employees for obeying a public health order requiring an employee to stay home due to coronavirus.

The Ordinance prohibits employers from demoting or terminating a Covered Employee for obeying an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, or, in the case of (2), (3), and (4) below, a treating healthcare provider, requiring the Covered Employee to:

  • Stay at home to minimize the transmission of COVID-19;
  • Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  • Obey a quarantine order issued to the Covered Employee;
  • Obey an isolation order issued to the Covered Employee; and
  • Obey an order issued by the Commissioner of Health regarding the duties
  • of hospitals and other congregate facilities

Employees subject to demotion or termination may recover reinstatement, damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place, actual damages, and attorneys’ fees. Violations may also lead to fines of up to $1,000 per offense per day.

The ordinance is effective immediately.

Fair Workweek Ordinance

Chicago’s Fair Workweek Ordinance is set to take effect on July 1, 2020. Ahead of the effective date, the BACP has issued rules for implementing the ordinance, and a supplemental rule for implementation during the pandemic.

The Ordinance requires covered employers to post work schedules at least 10 days in advance, and provide additional pay if work schedules are changed without advanced notice. However, the Ordinance creates an exception where the work schedule change is “because of” a pandemic. BACP’s supplemental rule clarifies that the COVID-19 outbreak qualifies as a “pandemic” for the purposes of this exception, and will remain a “pandemic” until the Mayor’s Executive Order declaring a state of emergency is repealed.    

However, a work schedule change will be considered “because” of the pandemic only when the pandemic causes the employer to materially change its operating hours, operating plan, or the goods or services provided by the employer, resulting in the work schedule change. Further, the exception applies only to the work schedule during which the change occurs, and the work schedule immediately following.

Additionally, while the substantive requirements of the Ordinance will still go into effect on July 1, 2020 and may still be enforced by the City, individual employees will not be allowed to file lawsuits for violations of the ordinance occurring before January 1, 2021.

New Rules for Third Party Food Delivery Companies

Mayor Lightfoot and the BACP announced new rules earlier this month for third-party food delivery companies to increase transparency and fair competition. Effective Friday, May 22nd, all third-party delivery companies must disclose the following to customers, in a “clear and conspicuous manner”:

  • the menu price of the food;
  • any sales or other tax applied to the transaction;
  • any delivery charge or service fee, imposed on or collected from the customer by the third-party food delivery service or by the covered establishment, in addition to the menu price of the food;
  • any tip that will be paid to the person delivering the food, and not to the third-party food delivery service, to be added into the transaction when it occurs, and
  • any commission associated with the transaction.

The disclosure requirements apply to all websites, mobile applications or other internet services that offer or arrange the sale of food or beverages by a restaurant, bar or other food-serving establishments. The measure is intended to promote transparency and fair competition, as many restaurants are increasing relying on third-party delivery services to stay afloat during the pandemic.

While the rules were promulgated in response to the pandemic, these new rules will be in place permanently.

Guidance for Restaurants Applying COVID Surcharges

The City of Chicago issued a guidance for restaurants charging COVID-related surcharges to customers, reminding restaurants that the City’s restaurant tax is .50%, and any surcharge customers are required to pay is considered taxable and should be included in the basis upon which the restaurant tax is calculated. Additionally, a COVID surcharge is not a tax and should not be designated as such on any price list or invoice.

Can Employers Require High Risk Employees to Stay Home? Latest EEOC Guidance on Interpreting the ADA During the Pandemic

The CDC has identified a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. The EEOC has recently provided updated guidance on how employers should treat employees in this category. To summarize the EEOC guidance, while employees may request to stay home, and employers are required to consider whether that would be a reasonable accommodation, employers cannot require high risk employees to stay home unless they have requested to do so or their reporting to work would rise to the level of a “direct threat.”

What if an employer already knows an employee is at higher risk? Can the employer require the employee to stay home?

Generally, no. Even if the employer is concerned about the employee’s health, the employer cannot take any adverse action against the employee (such as requiring the employee to stay home) on the basis of being higher risk, unless the employee’s disability rises to the level of a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.

“Direct threat” is a high standard to meet.  It requires an individualized assessment based on a reasonable medical judgment about the employee’s disability – and cannot be based solely on the employee’s disability being listed on the CDC list. If the employee’s disability does pose a direct threat, the employer must attempt to provide a reasonable accommodation such as telework or reassignment before excluding the employee from the workplace.

Can employers ask employees if they have a disability that might put them at higher risk?

The EEOC has not provided clear guidance on this issue, so we currently are recommending against asking employees if they have a disability that might put them at higher risk.  However, it is would be permissible to inform employees generally that if they have a disability that would put them at higher risk, and they wish to request a reasonable accommodation (which could include staying home), that the employer would be happy to consider such requests.

In a previous guidance issued by the EEOC in response to flu pandemics, the agency cautioned against asking about medical conditions that might put employees at higher risk.  However, the EEOC did not close the door entirely on such inquiries.  The guidance stated that if a pandemic “becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza.” It’s possible that the current COVID-19 pandemic may fit the situation that the EEOC described, but the EEOC has not yet provided clarification.

In the absence of definitive guidance from the EEOC, there are significant risks involved in making disability-related inquiries, including the risk of claims after the pandemic based on the employer’s knowledge of an employee’s disability. Accordingly, we recommend employers avoid making these inquiries until the EEOC provides further guidance.

Employers may ask employees if they have symptoms of coronavirus or have tested positive.  Additionally, employers may invite employees to voluntarily disclose any underlying condition that make them vulnerable to the coronavirus, so that the employer may provide any necessary reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition rising to the level of a disability and the accommodation does not cause an undue hardship. See our previous guidance on reasonable accommodations here.

Illinois Workers’ Compensation Emergency Rules Rescinded

As we previously reported, in April, the Illinois Workers’ Compensation Commission enacted emergency rules creating a presumption that employees of essential business that contract coronavirus were exposed in the workplace for purposes of workers’ compensation liability.

Business groups immediately challenged the change, and a judge temporarily blocked enforcement of the emergency rules, saying that the Illinois Workers’ Compensation Commission exceeded its authority when it enacted the rules.

Now, the emergency rules have been rescinded, but both Governor Pritzker and the Commission have indicated that they will renew their efforts to ensure that workers’ compensation is available to employees who contract COVID-19.

Employers should continue to follow CDC and OHSA guidance to maintain a safe working environment for all employees or in planning for reopening.

New Required Poster and Other Key Takeaways for Employers from Illinois’ New Stay-At-Home Order

On April 30, Governor Pritzker issued an executive order extending Illinois’ Stay-at-Home mandate to May 30. The order, effective May 1, also contains a number of new requirements for employers. The key takeaways are below:

1. All Employers with Employees On-Site Must Post New Safety Poster

Any business with employees physically reporting to the work site must post guidance regarding workplace safety during the COVID-19 emergency. The required posting is available here.

Additional workplace safety posters are available from OSHA and the CDC.

2. Employers Should Facilitate Remote Work “When Possible”

All businesses must evaluate whether employees are able to work from home and are encouraged to facilitate remote work from home when possible.

3. Employers Must Provide Face Coverings to Employees Where Social Distancing Unavailable

Employer must provide employees with appropriate face coverings and require that employees wear face coverings where maintaining a six-foot social distance is not possible. When work circumstances require, employers must provide employees with other protective equipment in addition to face coverings.

4. New Social Distancing Guidelines for Manufacturers

Essential manufacturers that continue to operate are required to follow social distancing requirements and take “appropriate precautions.” These precautions may include:

      • providing face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times;
      • staggering shifts;
      • reducing line speeds;
      • operating only essential lines, while shutting down non-essential lines;
      • ensuring that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing; and
      • downsizing operations to the extent necessary to allow for social distancing and to provide a safe workplace in response to the COVID-19 emergency.

5. New Social Distancing Guidelines for Retail Stores

Essential retail stores that continue to operate must comply with the following requirements to the greatest extent possible:

      • provide face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times;
      • cap occupancy at 50 percent of store capacity, or, alternatively, at the occupancy limits based on store square footage set by the Department of Commerce and Economic Opportunity;
      • set up store aisles to be one-way where practicable to maximize spacing between customers and identify the one-way aisles with conspicuous signage and/or floor markings;
      • communicate with customers through in-store signage, and public service announcements and advertisements, about the social distancing requirements set forth in this Order (Social Distancing Requirements); and
      • discontinue use of reusable bags.

Non-essential retail stores may reopen for the limited purposes of fulfilling telephone and online orders through pick-up outside the store and delivery. Employees working in the store must follow social distancing requirements and must wear a face covering when they may come within six feet of another employee or a customer.

Can Employers administer COVID-19 tests? What about reasonable accommodations? Latest EEOC Guidance on Interpreting the ADA during the Pandemic

The EEOC continues to update its guidance [Link: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm] on the enforcement of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, during the coronavirus pandemic. Below are the highlights from the latest updates:

Can employers administer COVID-19 tests?

Yes. Employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employers should ensure that that the tests are accurate and reliable, consistent with guidance from the U.S. Food and Drug Administration, CDC and other public health authorities.

Remember that employers who choose to test employees must keep the results confidential and store this information separately from the employee’s personnel file.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition and it does not cause an undue hardship. The EEOC proposes a number of potential low-cost accommodations for reducing exposure in the workplace, including designating one-way aisles, and using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance. Additionally, temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying work schedules may be reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic?

Potentially, yes, if it does not cause an undue hardship. Although many employees feel stress due to the pandemic, employees with certain preexisting mental health conditions, such as anxiety disorder or post-traumatic stress disorder, may have more difficulty handling the disruption and may require an accommodation.

Is the pandemic relevant to what accommodations can be denied as causing an “undue hardship”?

Yes. An accommodation that would not have posed an undue hardship prior to the pandemic may pose one now, as the pandemic changes what accommodations cause employers “significant difficulty or expense.” For example, it may now be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to acquire certain items as delivery may be impacted. Additionally, the EEOC notes that the sudden loss of some or all of an employer’s income stream and amount of discretionary funds available because of this pandemic are relevant considerations.

Does the pandemic change the interactive process or length of accommodations?

Potentially, yes. During the pandemic, the employers may still ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation

However, employers may choose to forgo or shorten the interactive process and grant accommodation requests on an interim, short-term or trial basis to keep up with the changing circumstances based on public health directives. Employers may choose to put an end date on the accommodation (for example, until the end date of a stay-at-home order) but must consider extensions, particularly if current government restrictions are extended or new ones adopted.

May employers require employees to wear face masks or gloves?

Yes. Employers may require employees to wear protective gear and observe infection control practices. However, employees may request reasonable accommodations under the ADA or religious accommodations from wearing this equipment.

Continue reading

COVID-19 Workplace Safety for Essential Businesses: What is New in Illinois? [Updated]

Can Employees Who Contract Coronavirus Receive Workers’ Compensation Benefits?

Update: The emergency rules have been rescinded following a court order temporarily blocking enforcement of the rule. Governor Pritzker and the Commission have indicated they will renew their efforts to make workers’ compensation available to employees who contract COVID-19.

Likely yes. In new emergency rules effective April 13, the Illinois Workers’ Compensation Commission announced that an employee of an essential businesses who contracts coronavirus will be rebuttably presumed to have been exposed in the workplace. Specifically, the exposure will be rebuttably presumed to have arisen out of and in the course of employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of employment. To defeat this presumption, the employer would likely have to put forth evidence showing the employee was exposed elsewhere or could not have been exposed in their workplace.

The presumption applies to First Responders, Front-Line Workers, and other employees identified as crucial personnel under Pritzker’s Executive Order.

Mask Requirements: What Could Happen in Illinois?

Update: Governor Pritzker’s executive order extending Illinois’ Stay-at-Home mandate to May 30 includes a requirement that employers provide face coverings to employees where social distancing unavailable. See all key takeaways here.

As of April 15, essential businesses in New York must provide employees who are present on the worksite with face coverings to be used when in direct contact with customers or members of the public. In Illinois, local governments in Skokie, Glenview, Cicero, and Morton Grove have issued orders requiring residents and visitors to wear a mask when in essential businesses like grocery stores, pharmacies and gas stations. In Cicero, like in New York, the order requires employers to provide masks to employees.

Governor JB Pritzker has said he is considering issuing a similar order. If he does, employers required to provide face masks to employees may be subject to OSHA requirements for providing Personal Protective Equipment (PPE). Employers are generally required to provide PPE to employees for at the employer’s cost and cannot require employees to provide their own PPE. Employers should thus be prepared to provide or pay for face masks for employees. Additionally, employers will likely need to provide employees information on the safe usage of required face masks. CDC guidelines on face masks is available here.

Non-Coronavirus Related Activity in the Supreme Court

While attentions have been focused elsewhere, the Supreme Court continues to operate remotely and release decisions. Here are recent highlights from the highest court:

Clarified Standards for federal ADEA and Section 1981 Claims

The Supreme Court has ruled on two cases recently regarding the standards for proving employment discrimination claims. Each case determined which of two standards was necessary to prove a claim:

  • The “but for” standard, which requires an employee to show that the employer would have reached a different decision if the protected characteristic wasn’t considered; or
  • The “motivating factor” standard, which requires employees to show that the protected characteristic was one of several factors that led to an adverse employment action.

In Babb v. Wilkie, the Court found that federal employees may prove age discrimination under the Age Discrimination in Employment Act (ADEA) using the more lenient “motivating factor” standard. For private sector employees, the Supreme Court has already ruled that employees must use the “but for” standard, but the court noted that the federal-sector provision in the ADEA is worded differently from its private-sector counterpart. However, federal employees will still need to show discrimination based on the stricter “but for” standard to receive remedies under the ADEA.

In Comcast Corp. v. National Association of African American-Owned Media, the Court held that the “but for” standard applies to claims under 42 U.S.C. 1981 (Section 1981). This means that employees bringing claims for employment discrimination on the basis of race or ethnicity under Section 1981 may only prove their case using the “but for” standard. This ruling did not impact the standards under Title VII, which allows employees to prove race discrimination using the “motivating factor” standard.

Takeaway: The difference between these standards can be significant in practice. The motivating factor test requires employees to show that the protected characteristic was one of several reasons that led to the action. The but-for test requires the employee to show that the decision would not have happened, but for the protected characteristic.

Justice Clarence Thomas, in his dissent in Babb, cautioned that applying this more lenient standard could result in the federal government facing more ADEA lawsuits. Meanwhile, civil rights groups have raised concerns that the Comcast decision disadvantages victims of race discrimination, who are “in the least advantageous position to know” whether race was the but for cause of a decision, rather than one of several factors.

EEOC Investigatory Powers

The Supreme Court declined to review a decision from the Ninth Circuit ruling that the Equal Employment Opportunity Commission (EEOC) may continue to investigate a charge of discrimination after it has issued a right-to-sue letter.

In VF Jeanswear v. EEOC, Lori Bell, a former salesperson for VF Jeanswear filed a gender discrimination charge with the EEOC—a required administrative step before filing a federal lawsuit. The EEOC issued Bell a notice of right to sue, and she subsequently filed a lawsuit against VF. Nevertheless, more than a year after issuing the notice of right to sue, the EEOC sent VF a subpoena requesting information about its employees. When VF refused to comply with the subpoena, the EEOC went to court to enforce it. The Ninth Circuit found that the subpoena was enforceable, because it was relevant to the allegations in Bell’s charge, even though the information requested was about practices that did not affect Bell.

Although the Ninth Circuit’s decision conflicted with a previous Fifth Circuit holding that issuing a right to sue notice terminates the EEOC’s ability to investigate, the Supreme Court declined to weigh in on the Ninth Circuit’s decision.

Takeaway: Employers should be aware that—although rare—the EEOC may continue to investigate a charge, even after a notice of right to sue has been issued. Outside of the Fifth Circuit, the employer may be required to comply with such a subpoena. At some point in the future, the Supreme Court hopefully will resolve this circuit split.