July 14, 2020

Volume X, Number 196

July 14, 2020

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July 13, 2020

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The Illinois Shutdown Order: Answers to Employers’ FAQs

On March 20, 2020, Illinois Governor J.B. Pritzker issued Executive Order (EO) 2020-10, directing all residents to stay at home except as necessary for essential activities and government functions and to operate essential businesses. Below are some answers to frequently asked questions (FAQs) regarding the executive order and its impact on Illinois employers.

Illinois Stay at Home EO

Question 1. How do you reconcile the Illinois EO’s social distancing requirements with safety regulations requiring two or more employees to work in close proximity?

A. The EO states social distancing requirements should be followed to the “greatest extent feasible.” The Occupational Safety and Health Administration is silent on this issue, stating there is no specific federal safety standard covering COVID-19. The Centers for Disease Control and Prevention (CDC) issued guidance encouraging employers to adhere to the social distancing requirements in their workplaces (i.e., maintaining distance of at least six feet from others when possible) to limit the risk of exposure to COVID-19 and its impact on operations.

Question 2. Can employees who live in Illinois travel to work for “essential business and operations” located in a different state?

A. If the business is “essential” or the travel is necessary to maintain minimum basic operations, the answer is yes. The EO “allows travel into or out of the State to maintain Essential Businesses and Operations and Minimum Basic Operations.” Additional guidance on the criteria for “Essential Businesses and Operations” and “Minimum Basic Operations” can be found in the “Essential Businesses and Operations” section below. Employers may want to provide employees with “travel papers” or a “safe passage letter” to indicate the employee works for an essential employer, although Governor Pritzker has publicly stated that no such papers are necessary.

Question 3. If a business qualifies as an “essential business and operation” under the EO, should it ensure that its employees can travel to work?

A. Employees may carry “travel papers” or a “safe passage letter” to indicate the employee works for an essential employer and/or needs to travel to maintain the minimum basic operations of the business, although Governor Pritzker has publicly stated that no such papers are necessary.

Shutdown Activities

Question 4. If a business was required to shut down pursuant to the EO, is anyone permitted to work on the premises?

A. The EO permits “minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions.” Only those essential personnel required to be present at the business to maintain these minimum basic operations should be allowed to work on-site. If work necessary to maintain basic operations can be done remotely, employers may want to encourage workers to perform such activities from home.

Question 5. Are employers required to pay any expenses for employees who are now working from home due to the shutdown of a facility?

A. Employers whose employees are working from home due to a shutdown may want to consider an emergency telecommuting policy. Keep in mind that state law requires employees who incur expenses to work from home to be reimbursed for these expenses. Specifically, the statute requires an employer to “reimburse an employee for all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” Necessary expenditures are defined as “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” Personal computers, mobile phones, and in-home Internet service will likely constitute necessary expenditures that need to be reimbursed at a reasonable amount.

The statute also requires employees seeking reimbursement to “submit any necessary expenditure with appropriate supporting documentation within 30 calendar days after incurring the expense, except that an employer may provide additional time for submitting requests for reimbursement in a written expense reimbursement policy. Where supporting documentation is nonexistent, missing, or lost, the employee shall submit a signed statement regarding any such receipts.”

An employee is not entitled to reimbursement when:

  • the employer has an established written expense reimbursement policy and the employee failed to comply with the policy; or

  • the employer did not authorize the employee to incur the necessary expenditure.

Based on the first exception, employers may want to consider adopting a written expense reimbursement policy to better plan for potential employee reimbursement requests. Because the Illinois Wage Payment and Collection Act governs these requirements, there is an independent cause of action for individuals to seek enforcement in any court of competent jurisdiction.

Question 6. How can employers track how much time employees working from home are working and the pay to which they are entitled?

A. Under state law, if non-exempt employees work from home, the time must be recorded and paid. Employers are also required to ensure employees report their hours worked and to provide employees with instructions and methods to do so accurately. If any employees receive hard copy paychecks, delivery must be arranged to ensure that their wages are “timely paid” under the Illinois Wage Payment and Collection Act.

With few exceptions, exempt employees must either be paid their full salaries or placed on leave (or an unpaid or reduced pay furlough/layoff) for the entire week. If exempt employees perform any work in a week, they must receive their full salaries, unless they elect to take time off (such as under a paid time off (PTO) policy). Employers may be able to impose salary reductions, but under Illinois state law, they must first notify employees in writing prior to the effective date of the change and the employees are working under the change.

Many employers may also have obligations under the newly enacted the Families First Coronavirus Response Act (FFCRA) (including medical leave and paid sick leave obligations).

Essential Businesses and Operations

Question 7. Are all businesses in the state of Illinois required to close?

A. Other than those defined as “essential businesses and operations,” businesses in Illinois must cease all but minimum basic operations.

Question 8. If a business is an “essential business” and needs employees to work a full week without 24 hours consecutive rest, what can the employer do to allow employees to keep working to meet the demands of the business?

A. The One Day Rest In Seven Act ensures that employees receive at least 24 hours of consecutive rest during a workweek (Sunday at 12:01 a.m. to midnight on Saturday). An employer can request a permit from the Illinois Department of Labor (IDOL) to have employees work without the required rest period. However, an employee must volunteer to work and an employer cannot force an employee to work without the required rest period. A permit request must be received by IDOL no later than the Friday before the first day that the permit goes into effect. An employer can apply for the permit on IDOL’s website.

Leaves of Absence

Question 9. Is the Illinois EO considered a “government quarantine or isolation order” under the Emergency Paid Sick Leave Act requiring the payment of paid sick leave? 

A. The EO is not likely considered a quarantine or isolation order under the paid sick leave law. There are many exceptions in the EO that allow individuals to move freely and not remain in isolation or quarantine. In addition, the EO states that nothing in it will “alter or modify any existing legal authority allowing the State or any county, or local government body from ordering (1) any quarantine or isolation that may require an individual to remain inside a particular residential property or medical facility for a limited period of time, including the duration of this public health emergency, or (2) any closure of a specific location for a limited period of time, including the duration of this public health emergency.” If the EO were a quarantine or isolation order, this language would not be necessary. It also serves to define a quarantine or isolation order. Lastly, when asked via email on March 21, 2020, the Illinois Department of Public Health’s COVID-19 team responded that it is a stay-at-home order.

warn/Layoffs

Question 10. Is an employer that lays off or furloughs employees because of COVID-19 subject to Illinois’ mini-WARN law requirements?

A. Illinois’ mini-Worker Adjustment and Retraining Notification (WARN) law has an “unforeseeable business circumstances” exception to the notice provision. Unlike the federal WARN Act, under Illinois’ mini-WARN law, this exception applies only to layoffs. It does not apply to terminations of employment. Under Illinois’ mini-WARN law, even if an exception applies, the employer is still required to “provide as much notice as is practicable and at that time shall provide a brief statement of the basis for reducing the notification period.” This is consistent with the federal WARN Act’s notice exception requirements.

IDOL’s website notes that it will continue to enforce all labor laws during the COVID-19 crisis. If an employer is seeking an exception under the Illinois WARN law, it should provide IDOL with a written basis for why it is seeking a reduction in the notice period and describe what notice period it wants, including none. The request is to be made prior to the layoff occurring. Requests for exceptions should be made to Robert Parrilli, Manager of the Conciliation and Mediation Division at (312) 793-3600 or robert.parrilli@illinois.gov.

Question 11. What if the layoff extends beyond six months?

A. The “unforeseeable business circumstances” exception provides that a “layoff of more than 6 months which, at its outset, was announced to be a layoff of 6 months or less, shall be treated as an employment loss under this Act unless: (1) the extension beyond 6 months is caused by business circumstances (including unforeseeable changes in price or cost) not reasonably foreseeable at the time of the initial layoff; and (2) notice is given at the time it becomes reasonably foreseeable that the extension beyond 6 months will be required.”

Unemployment Benefits

Question 12. Are employees eligible for unemployment benefits if temporarily laid off or furloughed because of COVID-19?

A. An individual temporarily laid off or furloughed because of COVID-19 may qualify for unemployment benefits “as long as he or she was able and available for and actively seeking work.” Under the Illinois Department of Employment Security’s (IDES) emergency rules, the individual would not have to register with the state employment service. The individual “would be considered to be actively seeking work as long as the individual was prepared to return to his or her job as soon the employer reopened.”

The pamphlet, “What Every Worker Should Know About Unemployment Insurance,” must be given to any separated employee and to any employee who is laid off for a period of seven or more days.

Question 13. What if an employee is confined to his or her home because (1) a licensed physician has diagnosed the employee as having COVID-19, (2) the employee must stay home to care for his or her spouse, parent, or child whom a medical professional has diagnosed as having COVID-19, or (3) of a government-imposed or government-recommended quarantine?

A. According to the IDES, “[a]n individual in any of those situations would be considered unemployed through no fault of his or her own.” To qualify for unemployment benefits, the individual must still satisfy “all other eligibility requirements, including the requirements that the individual be able and available for work, registered with the state employment service and actively seeking work from the confines of his or her home. The individual would be considered able and available for work if there was some work that he or she could perform from home (e.g., transcribing, data entry, virtual assistant services) and there is a labor market for that work.”

Pay and Benefits

Question 14. A company is furloughing employees and concerned about cash flow. Is the employer required to pay PTO on the date of the furlough?

A. Unfortunately, there is no case law or guidance from IDOL on this issue. If the layoff or furlough will last greater than seven days, it is likely that IDOL would take the position that the PTO should be paid out. Illinois law provides for damages of two percent on the amount owed for each month of non-payment (compounding). If IDOL orders payment, there is also a non-waivable administrative fee based on the amount of the underpayment (ranging from $250 to $1,000). IDOL may also find the employer guilty of a misdemeanor and each day of violation is considered a separate and distinct offense (whether it is a Class A or Class B misdemeanor depends on how much is owed to the employee).

Further, employers may still be obligated to provide PTO for employees in Chicago and Cook County under the Chicago Paid Sick Leave Ordinance and/or Cook County Earned Sick Leave Ordinance (for Cook County municipalities that have not opted out of paid sick leave). Both the Chicago and Cook County paid sick leave ordinances provide that an employee may use earned sick leave when “his or her place of business is closed by order of a public official due to a public health emergency, or he or she needs to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency.” The term “public health emergency” is defined as “an event that is defined as such by a Federal, State or Local government, including a school district.” Employees who need to care for a child due to the ordered school closures or who are laid off because their employer is subject to the Illinois shutdown order may be eligible to use their paid sick leave to cover time away from work.

Harassment Training Pursuant to the Illinois Workplace Transparency Act

Question 15Will COVID-19 affect the deadline for employers to provide sexual harassment prevention training for their workforces?

A. Not yet. As of now, the deadline will not be impacted, and employers have until December 31, 2020, to conduct required sexual harassment prevention training. The Illinois Department of Human Rights (IDHR) is scheduled to release the training module by March 31, 2020. Employers should continue to monitor any further guidance or updates from the IDHR regarding changes to the sexual harassment prevention training guidelines.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 85

TRENDING LEGAL ANALYSIS


About this Author

Carol Poplawski, Ogletree Deakins Law Firm, Chicago, Labor and Employment Litigation Attorney
Shareholder

Carol Poplawski has spent her entire career representing the interests of management in all areas of labor and employment law. She is a trial attorney and has litigated hundreds of cases in courts and before administrative agencies. Ms. Poplawski’s litigation experience has given her a keen insight into the employment relationship which she shares with her clients when counseling, advising and training them on workplace issues. This advice and counseling reaches the boardrooms of Fortune 500 companies and well as small businesses and non-profit organizations....

312-558-1244
Norma Manjarrez, Ogletree Deakins Law Firm, Employment Law Litigation Attorney
Associate

Ms. Manjarrez is an attorney in the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., where she assists management in a variety of labor and employment matters. Prior to joining Ogletree Deakins, Ms. Manjarrez practiced at a business services law firm, where she represented management in matters including enforcement of collective bargaining agreements and defended allegations of disability discrimination, retaliatory discharge, sexual harassment, and violation of wage and hour and wage payment laws.

312-558-1429