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of this exception, and will remain a “pandemic” until the Mayor’s Executive Order declaring a state of emergency is repealed.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.

Paid Sick Leave Coming in Q3

We’re only a few days into Q2, but we wanted to make sure that you’re prepared for a significant legal change that is effective at the beginning of Q3.  Starting July 1st, employees who work in Cook County will have a right to paid sick leave under the Cook County Earned Sick Leave Ordinance, the Chicago Paid Sick Leave Ordinance or both. 

On their surface, the requirements of the Ordinances seem pretty straightforward, leaving many companies to believe that their current PTO or sick leave policy meets the new standards.  However, most of the policies we’ve reviewed to date don’t meet all of the new standards.  This is largely because the Ordinances:

  • Apply to all employees – including part-time employees – who work at least 80 hours in any 120 day period.
  • Allow the employee to carryover up to 20 hours of paid sick leave into the next year (up to 60 for employers that are covered by the FMLA).
  • Require that paid sick leave may be used not just for the employee or a family member’s illness or injury, but also to seek medical care or to care for a family member, in the event that the employee or a family member is the victim of domestic violence, or in the event that the workplace or the employee’s child’s school or place of care is closed due to a public health emergency.
  • Provide that an employer can’t require a note unless the employee is out for more than 3 consecutive days or more.
  • Put limitations on the notice employers can require from employees, including allowing employees to provide last minute notice by phone, email or text.

There are also a couple provisions in the Ordinances that help employers – including capping accrual at 40 hours per year, capping use at 40 or 60 hours per year (depending on the size of the employer and the reason for leave), and not requiring payout on termination.  However, to take advantage of these employer-friendly provisions, it’s important to reflect them in your policy. 

Both Ordinances provide that employees who don’t receive the paid sick time the Ordinances require can file suit and collect triple damages.  We expect Plaintiffs’ attorneys to be out in force looking for potential class actions, so it is important that every company that employs workers in Cook County have their policy reviewed in advance of the July 1st implementation deadline.  Because of the number of sick leave policies we’ve already seen, we are able to review current policies and prepare compliant policies efficiently, on a flat fee basis.

Labor & Employment Practice Group Leader Laura Friedel is available for questions about how these ordinances might affect your company’s policies.

 

Chicago Extinguishes E-Cigarette Use in Enclosed Places

ecigsbannedThe city of Chicago has decided that electronic cigarettes (e-cigarettes) should be treated the same way as more conventional cigarettes.  Effective April 29, 2014, e-cigarettes will be banned in enclosed public places and enclosed places of employment in the city of Chicago as a part of the Smoke Free Illinois Act and the Clean Indoor Air Ordinance.

Promoted by some as a healthier alternative to smoking cigarettes, e-cigarettes use a heating element to vaporize a liquid solution that contains nicotine and flavorings, or a flavored vapor without nicotine. Chemicals are emitted from e-cigarettes when the vapors are exhaled. With no guidance from the Food and Drug Administration about e-cigarette safety, city councils across the country are making their own decisions. Chicago joins New York City and a handful of cities and states to include e-cigarettes in their indoor smoking regulations.

Chicago’s Clean Indoor Air Ordinance, effective since 1988, prohibits smoking in virtually all enclosed public places and enclosed places of employment, and within 15 feet of the entrance of these establishments.

Employers in the city of Chicago should update their policies, handbooks, and workplace postings to reflect this new ordinance.