Tag Archives: Illinois Employers

Wage and Hour Questions on the Vaccine Mandate: Pitfalls for Illinois Employers Covered by the Executive Order   

Contributed by Michael Wong and Sara Zorich, September 16, 2021

Medicine doctor and vaccine dose syringe

On August 23rd Governor Pritzker issued Executive Order 2021-20 requiring  health care workers, school personnel, higher education personnel and students, and state-employees and contractors who work at state-owned or operated congregate facilities to get their first dose of a two-dose COVID-19 vaccine series, or a single-dose COVID-19 vaccine, within 10 days and be fully vaccinated within 30 days, subject to applicable medical and religious exemptions under federal and state law.

Two weeks later on September 3rd Governor Pritzker issued Executive Orders 2021-22 extending the time to get the first dose of a two-dose vaccine to September 19, 2021, and the second dose of a two-dose COVID-19 vaccine series within 30 days following administration of their first dose in a two-dose vaccination series (October 19, 2021).

Following the issuance of Executive Order 2021-22, the Illinois Department of Public Health (IDPH) issued guidance on the Executive Order. This guidance clarified that even if an employee did not have a medical or religious exemption, that they could alternatively choose to be tested for COVID-19 on a weekly basis rather than be vaccinated, unless their employer implements a stricter requirement that they be vaccinated, subject only to the applicable medical and religious exemptions.

REMEMBER: Executive Order 2021-20 only covers health care workers, school personnel, higher education personnel and students, and state-employees, and contractors who work at state-owned or operated congregate facilities.

If you have workers subject to Executive Order 2021-20, there are a lot of questions and potential pitfalls ahead, especially in the wage and hour realm. The following are common questions that should be asked not only about the Illinois Governor’s vaccine mandate, but the President’s proposed OSHA rule on vaccines and other state vaccine mandates.

Do employers need to pay for the time employees spend getting vaccinated? The answer depends on whether the employer is simply complying with the Executive Order or taking it a step farther by requiring employees get the COVID-19 vaccine. 

The Illinois Dept. of Labor (IDOL) guidance provides that if an employer requires employees to get vaccinated, the time spent obtaining the vaccination is likely compensable – even if it is non-working time. However, for optional vaccination programs, the IDOL states employees that choose to obtain the vaccine voluntarily should be allowed to utilize sick leave, vacation time or other paid time off. Based on the IDPH Guidance, there is an indication that compliance with the Executive Order is not considered a “mandatory vaccination program” for an employer, unless the employer imposes more stringent requirements. As such, unless an employer makes vaccinations mandatory, the current IDOL guidance indicates employers are not required to pay an employee for the time spent getting vaccinated.

The importance of local laws are highlighted here though due to Cook County Ordinance Sec. 42-122. Employers with a principle place of business in Cook County (which includes Chicago) must comply with Cook County Ordinance Sec. 42-122, which went into effect on July 1, 2021. The Ordinance provides that employers that have a primary business location in Cook County and who require their employees get the vaccine must compensate their employees for up to 4 hours of paid time per dose at the employee’s regular rate of pay if the employee chooses to get the vaccine during their work shift.  Further, regardless of whether a vaccination is voluntarily sought by an employee or required by an employer, employers cannot require that an employee get vaccinated only during non-shift hours and shall not take any adverse action against any employee for taking time during a shift to get vaccinated.

What about travel time and expenses to get the COVID-19 vaccine?  If an employer imposes a mandatory vaccine requirement, under federal and Illinois state law, employers would likely need to reimburse the travel time and expenses for the employee to get vaccinated.  Under the FLSA, the time spent traveling to undergo “special tests” required by the job (e.g. physical examinations, fingerprinting and drug testing) is compensable time. As such, if you put into place a mandatory vaccination policy, we would recommend employees report the time it took them to get to/from the vaccination site and such time would be compensable work time. In terms of travel expenses (e.g. mileage and tolls), Illinois law requires employers reimburse expenses that are required of the employee in the discharge of employment duties and inure to the primary benefit of the employer. Thus, it is recommended that employers also reimburse for the employee’s mileage to/from the vaccination site.

Is there a difference between Vaccinations vs. Testing? – YES! While the Executive Order indicates that vaccinations are optional, weekly testing if an employee is unvaccinated is not optional. As a result, under the FLSA and IDOL guidance, COVID-19 testing for covered employees under the Executive Order would likely be considered compensable time. Additionally, even though the IDPH guidance states that the Executive Order does not require employers to pay for testing, this does not take into consideration the FLSA and state laws that require employers to pay for the cost of business expenses, including medical tests that are required.

The vaccine mandate landscape is starting to heat up and will be continuously changing in the near  future. Employers are waiting on more information and guidance from the President’s proposed OSHA’s rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Illinois’ Executive Order vaccine mandate is a good primer on issues that employers throughout the United States will need to consider once the proposed OSHA rule is issued and in dealing with any state or local vaccine mandate. As these are new and complicated issues, employers should speak with experienced labor counsel in addressing vaccine mandates prior to implementing any policy requiring vaccinations.

Up in Smoke: Recreational Marijuana and its Impact on the Illinois Workplace

Contributed by Noah A. Frank, Michael D. Wong, and Jeffrey A. Risch, May 31, 2019

It appears Illinois will become the 11th state to permit recreational cannabis. Once Governor Pritzker signs the legislation, as promised, beginning January 1, 2020, the Cannabis Regulation and Tax Act (“Act”), will allow adults (21+) in Illinois to possess and consume cannabis. While there is a lot “rolled” into the 600 plus page law (pun intended), there are significant employment pitfalls for employers with regard to enforcing drug free workplaces.

Marijuana and a gavel

The Act expressly permits employers to adopt and enforce “reasonable” and nondiscriminatory zero tolerance and drug free workplace policies, including policies on drug testing, smoking, consumption, storage, and use of cannabis in the workplace or while on-call – which is good for employers.

However, the Act’s language indicates that employers are not allowed to take an adverse action against an applicant or employee for marijuana usage outside the workplace. This is bad for employers, as it makes it much more difficult for employers to identify and address use of marijuana by employees. In particular, the Act amends the Illinois Right to Privacy in the Workplace Act (“Right to Privacy Act”), which prohibits employers from restricting employees from using legal products outside of work. Specifically, the Right to Privacy Act is amended to provide that “lawful products” means products that are legal under state law, indicating that recreational and medical marijuana are legal products that must be treated like alcohol and tobacco. Thus, employers may not discriminate against an employee or applicant who lawfully uses cannabis (recreationally or medically) off-premises during nonworking and non-call hours. 

Much like with the Illinois medical marijuana law, the Act changes the emphasis from whether an employee “used” marijuana while employed, to whether the employee was “impaired” or “under the influence” of marijuana while at work or working. As a result, drug testing without any other evidence of the employee being impaired at work or while working will open the door to legal challenges. Specifically, refusing to hire, disciplining, terminating, refusing to return an employee to work or taking an adverse action against an employee or applicant who fails a pre-employment, random, or post-leave return to duty drug test for marijuana will arguably create a claim for the employee against an employer for a violation of Illinois law. For example, an employee who undergoes a urine drug test (which shows use of marijuana within 30-45 days) following a workplace accident may argue that “recreational cannabis was lawfully used outside of work, and the accident/injury was unrelated to the employee’s legal use of cannabis outside of work.” Without more than the drug test result, the employer would be in a vulnerable position to argue against or defend such a claim. However, if the employer completed a post-accident report, which included a reasonable suspicion checklist, in which a trained supervisor observed and recorded symptoms/behaviors of drug use, the employer would be in a much better position to take an adverse action against the employee and dispute any such claim by an employee based on the observations and positive drug test.

With the changes to the Right to Privacy Act, it is important for employers to understand the potential exposure and damages. Under the Right to Privacy Act, aggrieved employees can recover actual damages, costs, attorneys’ fees and fines. As such, employers should make sure their practices and procedures are practical in light of these changes, until and unless the legislature or a court provides further clarity. Of course, the Illinois Department of Labor can provide such clarity through administrative rulemaking. However, that will likely not happen any time soon. 

Interestingly, the Act neither diminishes nor enhances the protections afforded to registered patients under the medical cannabis and opioid pilot programs (while cannabis use is not protected under federal law, the underlying medical condition is likely an ADA and IHRA-covered disability!). Much like under the Illinois medical marijuana law, the Act appears to require employers to take an additional step before disciplining or terminating an employee based on a “good faith belief” that the employee was impaired or under the influence of cannabis while at work or performing the job. After the employer has made a “good faith belief” determination and drug tested the employee, but before disciplining or terminating an employee, the employer must provide the employee with a reasonable opportunity to contest that determination. Once the employee is provided a reasonable opportunity to explain, an employer may then make a final determination regarding its good faith belief that the employee was impaired or under the influence of cannabis while on the job or while working, and what, if any, adverse employment action it will take against the employee without violating the Act. Requiring an employee to go through drug testing is still currently the best practice as a positive drug test will provide additional support for a supervisor’s reasonable suspicion determination.

What Employers Should Do to Diminish Legal Risks and Protect ‎their Workforce?

  1. First, get educated and evaluate all policies and practices that touch on providing and ensuring a safe workplace, including job descriptions. Review the law. Talk to legal counsel on an intimate basis. Assess workplace cannabis-tolerance (in general) and implement policies that can be enforced consistently amongst similarly situated employees. Policies that should be reviewed (and that could be affected) include those addressing health and safety (including accident reporting, smoking, and distracted driving), equal employment opportunity policies, workplace search/privacy policies and drug testing policies. Companies should also review with legal counsel, their drug testing vendor as well as their Medical Review Officer, the drug testing methodology being used to make sure that such is producing results that are useful, accurate and well vetted.
  2. Second, ensure managers and supervisors are well trained and capable of enforcing policies. Remember – exceptions and favoritism lead to discrimination claims.  Conducting training, especially training on reasonable suspicion detection, will be necessary to avoid legal challenges to a supervisor’s reasonable suspicion determination. Creating and/or updating forms for accident reporting (including witness statements), reasonable suspicion checklists, and established protocols for addressing suspected impairment in the workplace, is now more critical than ever.
  3. Third, clearly communicate management’s position and policies to employees, especially where there is a shift in current policy or practice. Educate employees on the effect of lawful and unlawful drug use and the employer’s policies regarding marijuana.
  4. Fourth, engage competent legal counsel to assist you in this process and in addressing difficult situations before they lead to costly and time-consuming litigation.

Finally, stay tuned for further state and national developments in this growing area of law. Be assured that SmithAmundsen’s Labor & Employment Group will be presenting timely webinars and seminars on this subject in the coming weeks and months.

Salary History Inquiry Bill Down But Far From Out

Contributed by Noah A. Frank, September 19, 2017

wage

On June 28, 2017, HB 2462, an amendment to the Illinois Equal Pay Act, passed both chambers of Illinois General Assembly. The bill would have made an employer’s inquiry into an applicants’ wage, benefits, and other compensation history an unlawful form of discrimination. Even worse for Illinois employers, the bill would allow for compensatory damages, special damages of up to $10,000, injunctive relief, and attorney fees through a private cause of action with a five (5) year statute of limitations.

On August 25, 2017, Governor Rauner vetoed the bill with a special message to the legislature that, while the gender wage gap must be eliminated, Illinois’ new law should be modeled after Massachusetts’s “best-in-the-country” law on the topic, and that he would support a bill that more closely resembled Massachusetts’ law.

The bill, which passed 91 to 24 in the House, and 35 to 18 in the Senate, could be reintroduced as new or amended legislation following the Governor’s statement, or the General Assembly could override the veto (71 votes are needed in the House, and 36 in the Senate, so this is possible) with the current language.

Why is this important?

With the Trump Administration, we have seen an increase in local regulation of labor and employment law. This means that employers located in multiple states, counties, and cities must carefully pay attention to the various laws impacting their workforces. Examples of this type of “piecemeal legislation” we have already seen in Illinois and across the country include local ordinances impacting minimum wage, paid sick leave, and other mandated leaves. Additionally, laws that go into effect in other jurisdictions may foreshadow changes at home as well (e.g., Illinois’s governor pointing towards Massachusetts’s exemplary statue).

Had it become law, this amendment would have effective required employers to keep applications and interview records (even for those they did not hire) for five years to comply with the statute of limitations for an unlawful wage inquiry (the Illinois Equal Pay Act already imposes a five year status of limitations for other discriminatory pay practices). By contrast, under Federal law, application records must be kept for only one year from the date of making the record or the personnel action involved (2 years for educational institutions and state and local governments).

What do you do now?

While the law has not gone into effect as of the date of this blog, it is likely that some form of the salary history amendment will ultimately become law in Illinois. Businesses should carefully review their job applications, interview questions, and related policies to avoid inquiries that may lead to challenges in the hiring process.

Additionally, record retention (and destruction!) policies should be reviewed for compliance with these and other statutes – as well as to ensure data integrity and security.

Finally, seek the advice of experienced employment counsel for best practices in light of national trends to remain proactive with an ounce of prevention