Law and the Workplace 2. Employers, Here's a Pe

TABLE OF CONTENTS

1. City of Chicago Passes COVID-19 Vaccination Ordinance – Law and the Workplace

2. Employers, Here’s a Peek At The COVID-Safe Workplace – Law360

3. Illinois Legislature Seeks to Limit Use of Restrictive Covenants – Law and the Workplace

4. Illinois Makes Significant Amendments to the Illinois Human Rights Act, Equal Pay Act and Business Corporation Act – Law and the Workplace

City of Chicago Passes COVID-19 Vaccination Ordinance

By Steven J. Pearlman, Edward Young and Dakota D. Treece on April 26, 2021

Posted in Coronavirus

On April 21, 2021, the City of Chicago passed an ordinance (the “Ordinance”), here, prohibiting Chicago employers from: (i) retaliating against workers who receive the COVID-19 vaccine during working hours; and (ii) requiring that workers receive the COVID-19 vaccine only during non-working hours. The Ordinance takes effect immediately.

The Ordinance applies to all employers who “engage the service of at least one individual for payment.” In addition, the Ordinance defines “worker” to mean “an individual that performs work for an employer, including as an employee or as an independent contractor.”

Under the Ordinance, an employer cannot require that its workers receive the COVID-19 vaccine during nonworking hours. If a worker elects to receive a COVID-19 vaccine, the employer must allow the worker to use any available paid sick leave or paid time off.

In addition, if the employer has implemented a mandatory vaccine policy under which workers are required to receive a COVID-19 vaccine, the employer must compensate the worker for time spent receiving the vaccine, up to four hours per dose, if the dose is administered during working hours. Such compensation must be at the worker’s normal rate of pay. An employer that requires workers to receive a vaccination also cannot require that the worker use paid sick leave or paid time off for the time taken to receive the vaccine.

The Ordinance has teeth: a worker subjected to an adverse employment action for taking time out of the work day to receive the COVID-19 vaccine can pursue a private right of action and recover: (i) reinstatement; (ii) damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place; (iii) any other actual damages directly caused by the retaliatory action; and (iv) costs and reasonable attorney’s fees. The Commissioner of Business Affairs and Consumer Protection or the Director of Labor Standards can also pursue violations of the Ordinance in an administrative hearing or in a court of law. A violation of the Ordinance will also result in a fine between $1,000 and $5,000.

We will continue to monitor and report developments relating to this Ordinance. In the meantime, employers should review their policies and practices to ensure that they are in compliance.

* * *

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Employers, Here's A Peek At The COVID-Safe Workplace

By Steven Pearlman, Edward Young and Dakota Treece · April 15, 2021, 4:53 PM EDT

Employees are still commuting downstairs to their home office.

But a return to the traditional workplace finally appears to be in sight primarily as a result of the increasing availability of effective vaccines. What will the traditional workplace look like once it is safe, or safer, to return, and how will working conditions change?

Steven Pearlman Questions abound as to a range of issues, such as:

Whether employers will require employees to get vaccinated;

Whether and how frequently employers will require COVID-19 screening and testing; Edward Young Whether nonvirtual work will only be allowed in staggered shifts;

Whether meetings and events will be allowed in the office or whether employees will still need to meet through online platforms even while they are down the hall from one another;

Whether employees will be permitted or required to travel for work Dakota Treece purposes; and

Whether clients, contractors, vendors and guests may enter the workplace.

Answers are likely to vary by company as employers consider different approaches in light of federal, state and local guidance.

The following provides a picture of what the new workplace is apt to look like in view of guidance provided by various governmental agencies thus far.

Vaccination Policies

In an effort to keep the workplace safe, many employers are considering implementing policies requiring or encouraging employees to get vaccinated.

As an initial matter, employers implementing a vaccination policy will need to decide whether to establish an on-site or off-site vaccination program.

The Centers for Disease Control and Prevention indicate that employers with a large number of employees, enough space for a vaccination clinic, and the ability to either enroll as a vaccination provider or use an already enrolled vaccination provider will be best suited for maintaining an on-site vaccination program.[1] There are a number of considerations for which employers must account when implementing vaccination policies.

Paid Leave for Vaccination Time

Employers will need to consider whether to provide employees with paid leave to receive the vaccine. The CDC has stated that it would be a best practice for employers to offer paid sick leave to employees who have "signs and symptoms" after receiving the vaccine.[2]

In addition, certain states have enacted laws and issued guidance regarding required paid COVID-19 vaccination leave. For example, New York state law requires employers to provide employees with up to four hours of paid time off per vaccine dose.[3] And guidance issued by the Illinois Department of Labor and Nevada's Office of the Labor Commissioner provides that employers should allow employees who voluntarily receive the vaccine to utilize sick leave, vacation time, other paid leave, or flex time in order to receive the vaccine.[4]

Employers opting for mandatory vaccination policies should also consider whether vaccination time constitutes hours worked. A couple of state agencies have issued guidance in that regard:

The Illinois Department of Labor has issued guidance noting that if an employer requires an employee to receive a COVID-19 vaccine, the time the employee spends receiving it should either be combined with paid leave or the employer should provide compensation for the time used to obtain the vaccine.[5]

The California Department of Industrial Relations recently updated its COVID-19 guidance to provide that if an employer requires an employee to receive a COVID-19 vaccine, the employer must pay for the time it takes for testing or vaccination.[6] That guidance also provides that an employer is required cover the cost of the vaccination and any travel expenses if the vaccine was received away from the employee's worksite.[7]

Nevada's Office of the Labor Commissioner has issued guidance stating that mandatory vaccine requirements should be combined with paid leave even if the employee receives the vaccine during nonworking time.[8]

Compliance With the ADA and Title VII

Employers implementing a mandatory vaccination policy must also navigate various anti- discrimination laws. The U.S. Equal Employment Opportunity Commission has issued guidance providing that such policies, subject to certain exceptions, may be permissible.[9] In particular, this guidance indicates that an employee may not be required to receive a vaccination if they have a disability under the Americans with Disabilities Act or sincerely held religious belief under Title VII that prevents them from receiving the vaccine. In such circumstances, the employer will need to engage in an interactive process to determine if a reasonable accommodation can be made.

State Laws Restricting the Ability of Employers to Require Vaccines

Although EEOC guidance permits mandatory vaccination programs (with the noted exceptions), some states have introduced legislation that seeks to make it unlawful to discriminate or take adverse action against someone based on vaccination status.

In Alabama, for example, House Bill 214 prohibits employers from "taking adverse action against an employee or prospective employee based on the employee's immunization status." [10] In Maryland, House Bill 1171 would prohibit an employer from terminating an employee if they refuse to receive the COVID-19 vaccine.[11]

Inside the Workplace

Employers will need to consider necessary physical changes to the workplace.

How Will the Workplace Look Different?

Earlier this year, the Occupational Safety and Health Administration released guidance recommending that employers implement COVID-19 prevention programs to address COVID-19-related concerns and limit the spread of COVID-19 in the workplace.[12] Some of the key recommendations include: Physical distancing: Employees should stay at least six feet away from each other whenever possible. Employers thus may need to alter workspaces or limit the number of employees that may congregate in a single place.

Barriers: When remaining six feet away in the workplace is not feasible, shields or barriers should be installed.

Face Coverings: Employers should require face coverings in the workplace and provide employees with face coverings at no cost. Notably, the CDC also recommends that all workers should wear masks in the workplace and many states have instituted mask mandates.

Ventilation: Employers should follow the CDC's recommendations for improving and double-checking ventilation to prevent the spread of COVID-19.

Hygiene Supplies: Employers should provide employees with hygiene supplies including tissues, soap and hand sanitizer.

Cleaning and Disinfection: Employers should follow the CDC's Guidance for Cleaning and Disinfecting (as well as state and local guidance) to develop and maintain a plan to perform regular cleanings.[13]

In addition to the CDC's guidance, employers will have to consider some practical questions, such as:

What capacity restrictions to impose in common areas such as lunchrooms, breakrooms, bathrooms and elevators. Some jurisdictions have already imposed caps on the number of individuals who can be in a room. For example, Chicago has a 50% capacity restriction in all noncustomer-facing offices.[14] Should employees be required to use Zoom and other online platforms to talk to the people in the offices next to them?

Will hallways be one-directional?

Staggered Shifts and Scheduling

The CDC recommends that employers stagger shifts, start times and break times in an effort to reduce the number of employees in the workplace at one time.[15] Some employers may opt for hybrid scheduling by continuing to utilize remote work and only requiring employees to report to the office on certain days.

Presence of Nonemployees

Some employers will likely continue to limit the presence of clients, vendors and guests in the office. For essential visits, employers are likely to designate certain spaces in which such individuals may be present.

Screening and Testing

Employers will likely implement routine COVID-19 screening tests and require employees to complete questionnaires. According to EEOC guidance, employers may administer temperature checks to employees and ask questions related to COVID-19 symptoms, at least for the duration of the direct threat posed by the COVID-19 pandemic.[16] Specifically, employers may ask employees if they are experiencing symptoms of COVID-19 and if they have been diagnosed with or tested positive for COVID-19.[17] If an employee refuses to comply, the employer is typically permitted to bar the employee from physical presence in the workplace.[18]

Travel

Work-related trips likely will remain on pause for some time. The CDC recommends that employers implement flexible meeting and travel options such as postponing in-person meetings, continuing remote meetings and limiting travel unless it is essential.[19] It also recommends that people delay all travel until they are fully vaccinated.[20] If someone is unvaccinated and must travel, the CDC recommends getting a COVID-19 test one to three days before the trip, wearing a mask while on all forms of transportation, receiving another COVID-19 test within three to five days after the trip and self-quarantining for seven days after the trip.[21]

Various cities and states also have travel restrictions that require visitors to quarantine upon arrival, subject to certain exceptions for those who have been tested, vaccinated, or recovered from COVID-19 in the previous three months. Such restrictions may conflict with work- related travel.

Conclusion

Thanks in large part to increasingly available and effective vaccines, the return to the traditional workplace finally appears to be in sight.

Employers will consider different approaches as offices reopen, in light of federal, state and local guidance.

There is likely to be, however, a nearly universal effort to promote employee safety while, at the same time, fostering a renewed esprit de corps and increasing productivity.

While the terrain of and interactions in a new workplace may look different in many respects, employees are apt to have a greater appreciation for the benefits of in-person collaboration and teamwork.

Steven J. Pearlman is a partner, and Edward C. Young and Dakota D. Treece are associates, at Proskauer Rose LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Centers for Disease Control and Prevention, Workplace Vaccination Program, Workplace Vaccination Program | CDC (Mar. 25, 2021).

[2] Id.

[3] 2021 NY Senate-Assembly Bill S2588A, A3354, S2588A (nysenate.gov).

[4] Illinois Department of Labor, Employer Guidance: Compensation, Paid Leave and the COVID-19 Vaccine, IDOL Vaccine Leave Guidance.pdf (illinois.gov); State of Nevada Department of Business & Industry Office of the Labor Commissioner, COVID-19 Vaccine/Vaccination Leave Guidance, COVID-19 Vaccination Leave Guidance (nv.gov).

[5] Id.

[6] State of California Department of Industrial Relations, COVID-19 Testing and Vaccine FAQs, COVID-19 Testing and Vaccine FAQs (ca.gov).

[7] Id.

[8] Supra note 5.

[9] U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov) (Dec. 16, 2020).

[10] HB214, The Alabama Legislature (Feb. 2, 2021), HB214-int.pdf (state.al.us).

[11] HB1171, Maryland General Assembly (Feb. 8, 2021), 2021 Regular Session - House Bill 1171 First Reader (maryland.gov).

[12] United States Department of Labor Occupational Health and Safety Administration, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace | Occupational Safety and Health Administration (osha.gov) (Jan. 29, 2021). [13] OSHA also recently launched a National Emphasis Program aiming to reduce and eliminate employee exposure to COVID-19. The Program will focus its enforcement efforts on industries where employees have the highest risk of COVID-19 exposure, such as healthcare facilities, supermarkets, restaurants, and correctional institutions. OSHA will conduct inspections in these industries to ensure they are in compliance with OSHA rules. Available at National Emphasis Program – Coronavirus Disease 2019 (COVID-19) (osha.gov).

[14] City of Chicago, Phase IV: Gradually Resume Guidelines, BeSafe.Capacity-Limitations- City-of-Chicago-Phase-4-Guidelines.pdf (Mar. 25, 2021).

[15] Centers for Disease Control and Prevention, Prepare your Small Business and Employees for the Effects of COVID-19, Prepare your Small Business and Employees for the Effects of COVID-19 | CDC (Apr. 4, 2020).

[16] Supra note 2.

[17] Id.

[18] Id.

[19] Supra note 18.

[20] Centers for Disease Control and Prevention, Domestic Travel During COVID-19, Domestic Travel During COVID-19 | CDC (Apr. 2, 2021).

[21] Id.

For a reprint of this article, please contact [email protected].

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Thank You! Illinois Legislature Seeks to Limit Use of Restrictive Covenants

By Steven J. Pearlman, Edward Young and Dakota D. Treece on February 23, 2021

Posted in Workplace Policies and Procedures

Two bills were recently introduced in the Illinois legislature that seek to limit or preclude the use of restrictive covenants for Illinois employers.

First, on February 19, 2021, the Illinois House of Representatives introduced House Bill 3066 (accessible here), which seeks to eliminate the use of non-competition and non-solicitation restrictive covenants against Illinois employees unless certain salary thresholds and notice requirements are met. More specifically, if passed, the bill would amend the Illinois Freedom to Work Act (820 ILCS § 90) to:

Prohibit the use of covenants not to compete unless the employee’s actual or annualized earnings exceed $75,000 per year; Prohibit the use of covenants not to solicit (both employee and client non-solicitation restrictions are included) unless the employee’s actual or annualized earnings exceed $45,000 per year; Render covenants not to compete and covenants not to solicit unenforceable unless employers: (i) advise employees to consult with counsel before agreeing to the restrictive covenant; and (ii) provide an employee with a copy of the covenant at least fourteen calendar days before the commencement of the employee’s employment; and Prevent employers from enforcing covenants not to compete against any employee who is terminated or furloughed due to the COVID-19 pandemic, or under any circumstances that are similar to the COVID-19 pandemic, unless the employee receives compensation equivalent to his or her base salary during the enforcement period minus compensation earned elsewhere during the enforcement period.

The bill also has a fee-shifting provision. It would allow an employee to pursue reasonable attorneys’ fees and costs if the employee prevails in a lawsuit brought by an employer to enforce a covenant not to compete or a covenant not to solicit.

Second, on February 22, 2021, the Illinois House of Representatives introduced House Bill 3449 (accessible here), which also seeks to amend the Illinois Freedom to Work Act. Significantly, this bill seeks to prohibit the use of covenants not to compete for all Illinois employees, regardless of an employee’s salary, which are entered into after the date the bill were to become law. We will continue to monitor developments relating to these proposed laws. In the meantime, Illinois employers would be well-advised to begin reviewing whether and how the proposed laws may impact their use of restrictive covenants going forward.

TAGS: HOUSE BILL 3066, ILLINOIS FREEDOM TO WORK ACT, ILLINOIS HOUSE OF REPRESENTATIVES, RESTRICTIVE COVENANTS

By Steven J. Pearlman, Edward Young and Dakota D. Treece on March 24, 2021

Posted in Workplace Policies and Procedures

On March 23, 2021, Illinois Governor Pritzker signed into law SB1480. As discussed below, the law makes significant changes to the Illinois Human Rights Act (IHRA), the Illinois Equal Pay Act (IEPA) and the Illinois Business Corporation Act, aimed at curtailing employer use of conviction records, imposing new reporting and registration requirements concerning employee demographics and pay, and creating new whistleblower anti-retaliation protections. The amendments take effect immediately.

The Illinois Human Rights Act

SB 1480 amends the IHRA to make it a civil rights violation for an employer to use a conviction record as a basis to refuse to hire, to segregate or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment unless: there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

To determine whether a “substantial relationship” exists, employers must consider whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position. Employers must also consider the following factors in evaluating the “substantial relationship” or risk to property or safety factors noted above: the length of time since the conviction; the number of convictions that appear on the conviction record; the nature and severity of the conviction and its relationship to the safety and security of others; the facts or circumstances surrounding the conviction; the age of the employee at the time of the conviction; and evidence of rehabilitation efforts.

If, after considering the mitigating factors, the employers makes a preliminary decision that the employee’s conviction record disqualifies the employee, the employer is required to notify the employee of this preliminary decision in writing. The notification must contain: notice of the disqualifying conviction(s) that are the basis for the preliminary decision and the employer’s reasoning for the disqualification; a copy of the conviction history report; and an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final. The notice must also inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification or evidence of mitigation, such as rehabilitation.

The employee is then allowed at least 5 business days to respond to the notification. The employer must consider any information submitted by the employee before making a final decision. If an employer makes a final decision to disqualify or take an adverse action solely or in part because of the employee’s conviction record, the employer shall notify the employee in writing of the following: notice of the disqualifying conviction(s) and the employer’s reasoning of the disqualification; any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and the right to file a charge with the Illinois Department of Human Rights.

The Illinois Business Corporation Act

Beginning January 1, 2023, corporations that are organized under Illinois law and that are required to file an Employer Information Report EEO-1 with the EEOC must now include in their annual report to the State of Illinois information that is substantially similar to the employment data reported under Section D of the corporation’s EEO-1 report. The Secretary of State will then publish data on the gender, race, and ethnicity of each corporation’s employees on the Secretary of State’s website.

The Illinois Equal Pay Act

The IEPA was amended to require private businesses with more than 100 employees to obtain an “equal pay registration certificate” by March 23, 2024, and every two years thereafter. To apply for the certificate, the business must submit a filing fee, an equal pay compliance statement, a copy of the employer’s most recent EEO-1 report, and report the total wages paid to each employee during the past calendar year. The equal pay certification will certify that:

The business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the IHRA, the Equal Wage Act and the IEPA; The average compensation for its female and minority employee is not consistently below the average compensation for its male and non-minority employees within each of the major job categories in the Employer’s EEO-1 report, taking into account factors such as length of service, requirements of specific jobs, experience, skill set, effort, responsibility, working conditions of the job, or other mitigating factors; The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex; Wage and benefit disparities are corrected when identified to ensure compliance with the laws referenced above; and Wages and benefits are evaluated to ensure compliance with the laws referenced above, as well as the frequency of any such evaluations.

The employer must also indicate on its equal pay compliance statement whether, in setting compensation and benefits, it utilizes: a market pricing approach; state prevailing wage or union contract requirements; a performance pay system; an internal analysis; or an alternative approach to determine what level of wages and benefits to pay its employees.

The Illinois Department of Labor (IDOL) can impose a penalty on any business in an amount equal to 1% of the business’s gross profits if: the business does not obtain an equal pay registration certificate; or the business’s equal pay registration is suspended or revoked after an investigation by the IDOL. In addition, the issuance of a registration certificate by the IDOL does not constitute a defense against any IEPA violation and also does not constitute a basis to mitigate damages. New Whistleblower Anti-Retaliation Protections

The IEPA was also amended to prohibit a business from taking any retaliatory action against an employee because he or she: discloses or threatens to disclose to a supervisor or to a public body an activity, inaction, policy or practice implemented by the business that the employee reasonably believes is in violation of a law, rule, or regulation; provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule or regulation by a nursing home administrator; or assists or participate in a proceeding to enforce the provisions of the IEPA.

An employee claiming retaliation must show that the alleged protected activity was a “contributing factor” in the alleged retaliatory action. The employer can avoid liability if it demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of that conduct. A prevailing employee may be awarded reinstatement, double back-pay with interest and reasonable costs and attorneys’ fees.

Conclusion

Illinois employers should review their current policies for compliance with these amendments. We will continue to monitor and report developments relating to this law.