Restrictions on inquiring into, or using, criminal history information are not new to Illinois employers.  For years, Illinois employers been precluded from using an applicant’s arrest history when making hiring or other employment decisions.  And, in 2015, Illinois joined the list of “ban the box” states by precluding employers with 15+ employees from inquiring into or considering the criminal record or criminal history of an applicant until after the applicant was selected for an interview or had received a conditional offer of employment.

Effective March 23, 2021, the restrictions have tightened again, through amendments to the Illinois Human Rights Act (“IHRA”), which borrow concepts from the Equal Employment Opportunity Commission (“EEOC”) and the Fair Credit Reporting Act (“FCRA”).

Restricted Use of Conviction Records

The new IHRA provisions make it a civil rights violation for an employer to use a “conviction record” as the basis for any employment decision, including hiring, promotion, discipline and discharge, unless:

1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; OR
2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals
   

The American Rescue Plan (“ARP”), signed into law by President Biden on March 11, 2021, does not place any new paid leave requirements on private employers who were previously covered by the Families First Coronavirus Response Act (“FFCRA”).  However, as they have been able to do through the first quarter of 2021, such employers may voluntarily continue to provide Paid Sick Leave (“PSL”) and Emergency Family and Medical Leave Act (“EFMLA”) leave as set forth in the FFCRA and receive certain payroll tax credits for such wages.

In addition, the ARP expands various aspects of the FFCRA:

Expansion of PSL:

• Employees can be given a new 10-day allotment of PSL for use from April 1, 2021 through September 30, 2021, even if they exhausted their PSL days during 2020 or used PSL with the employer’s permission during the period January 1 – March 31, 2021.
• PSL can be used for additional reasons (subject to the FFCRA requirement that the employee be unable to work due to the qualifying reason), specifically:
  • for leave needed when the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID 19, where such employee has
    

With an express purpose of encouraging employees (and their family members) to get the COVID-19 vaccine, the Illinois Department of Labor (“IDOL”) recently issued guidance for employers regarding compensation and paid leave in connection with absences for vaccine appointments.

According to the IDOL: 

Mandatory Vaccination:  The time an employee spends to get the vaccine, when required to do so by the employer, is “likely compensable,” even if it is non-working time.  Accordingly, employers should:

• provide paid leave; or
• otherwise compensate employees for such time.

Voluntary Vaccination: Employers are not required to provide compensation/paid leave for employees to obtain the vaccine when vaccination is not required by the employer; however, employers are encouraged to do so.  Accordingly, employers should:

• allow employees to use sick leave, vacation time, or other paid leave;
• consider offering employees “flex” time so that they do not have to take unpaid leave; or
• allow employees to “flexibility” to take time off unpaid.

Family Vaccination: Under the Illinois Employee Sick Leave Act (effective Jan. 1, 2017), depending on how an employer handles employee use of paid sick leave benefits, the employer may be required to allow employees to use paid sick

COVID-19 has led to significant employee absences from the workplace.  While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances.  Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.

For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave.  Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist.  At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.

Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances.  As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically

The United States Department of Labor (DOL) wrapped up 2020 by issuing COVID-related guidance under both the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA).

FMLA Guidance

The DOL issued new FMLA guidance in the form of two “Field Assistance Bulletins” (FAB)[1], noting in a press release that the guidance is part of the DOL’s “ongoing efforts to support the American workforce through the pandemic recovery.”

In FAB 2020-7, the DOL addressed the employer notice provisions of various federal labor laws.[2]  With respect to the required posting of the general FMLA notice, the DOL explained that it will consider electronic posting by employers to satisfy the posting requirement when: (a) all hiring and work is done remotely; and (b) the employer posts the FMLA notice on an internal or external website that is accessible to all employees and applicants at all times.   To the extent an employer has a hybrid workforce (i.e. employees who work remotely and employees who work on-site), the DOL encourages employers to use electronic postings to supplement, not replace, their posting requirement of the general FMLA notice.

In FAB 2020-8, the DOL indicated that it

Late last night, President Trump signed the newest COVID relief bill into law.  The new law amends several federal relief laws, including the Families First Coronavirus Response Act (“FFCRA”).  Specifically, employers who voluntarily provide FFCRA benefits after the end of the year may receive tax credits for qualifying leave provided through March 31, 2021.

Additional information about the FFCRA amendments in the new law is available here.  We will continue to monitor developments, including any relevant guidance that the Department of Labor may publish.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

Late on December 21, 2020, Congress passed a new federal COVID relief bill, which, if signed into law, would amend a number of laws, including the Families First Coronavirus Response Act (“FFCRA”).  The FFCRA currently requires covered employers to provide eligible employees with paid sick leave and partially paid emergency family and medical leave benefits through December 31, 2020.

Notably, the new bill does not extend the FFCRA’s mandate that employers provide such leave beyond the end of the year.  Instead, the new bill allows covered employers to receive a tax credit for leave that they voluntarily provide to employees from January 1, 2021 through March 31, 2021, if such leave would otherwise be covered by the FFCRA.

In practice, this means that if the new bill becomes law, under federal law:

• Employers will not be required to provide paid sick leave or partially paid emergency family and medical leave under the FFCRA beyond December 31, 2020.
• Employers may voluntarily provide paid sick leave or partially paid emergency family and medical leave under the FFCRA after December 31, 2020.
• If an employer voluntarily provides such leave benefits after December 31, 2020, they may be eligible for a tax