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Chicago Amends Minimum Wage and Paid Sick Leave Ordinance: What Employers Need to Know

The City of Chicago has amended its Minimum Wage and Paid Sick Leave Ordinance (the “Ordinance”), providing new reasons for taking paid sick leave under the Ordinance, and adding a new remedy for Chicago employees alleging wage theft against their employers (collectively, the “Amendments”). The Amendments are in full effect as of August 1, 2021, and employers should carefully review their policies and practices to ensure compliance. For additional background on the Ordinance, please refer to BCLP’s earlier post here.

New Cause of Action for Wage Theft

The Amendments create a new cause of action for wage theft. The Illinois Wage Payment and Collection Act (“IWPCA”) already prohibited wage theft, and employees in Chicago already had the right to bring claims for untimely or incomplete payment of wages in state court. The Amendments give “Covered Employees” in Chicago a new remedy separate and apart from the IWPCA. Covered Employees are defined as those employees who work at least two (2) hours during any two-week time period in the City of Chicago, including time travelling for deliveries or sales calls but not including uncompensated commuting time.

Now, Covered Employees may file a claim of wage theft with the Chicago

Employee COVID Vaccination Status: You Asked. They Answered. Now What?

As employers make plans to modify pandemic-related work-from-home arrangements and require employees to come into the workplace, many have wrestled with “the vaccination status question.” Should employers ask employees whether they are fully vaccinated against COVID-19, or even require employees to provide proof of vaccination before returning to work (subject to certain accommodation obligations)?

The U.S. Equal Employment Opportunity Commission’s (“EEOC”) COVID-19 Guidance has made clear that, under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), employers are generally permitted to inquire about vaccination status, because the question is not a disability-related inquiry or a medical examination.  In light of this guidance, many employers have opted to ask the vaccination status question, and are doing so in various voluntary or mandatory ways, e.g., through surveys, through required completion of forms or attestations, or even by requesting proof of vaccination (i.e., a copy or photograph of the employee’s CDC-issued vaccination card received at the time of vaccination).

But once the vaccination status question is asked and answered, what can and should an employer do with the vaccination status information? Can it be the basis for employment-related decisions? Are there any restrictions on

Illinois Amends Employee Sick Leave Act, Expanding Coverage to Include “Personal Care” for Covered Family Members

Illinois Governor J.B. Pritzker recently signed into law an amendment to the Illinois Employee Sick Leave Act (ESLA), permitting employees to take leave for a covered family member’s “personal care.”

Enacted in 2017, the ESLA requires Illinois employers to permit employees to use half of their annual accrued sick leave under an existing sick leave policy for absences related to the illness, injury, or medical appointment of certain family members. For example, an employee who accrues 40 hours of sick leave each year is entitled to use 20 hours of such time for family leave purposes. Notably, the ESLA does not require employers to provide paid sick leave—it only applies to those employers who already provide leave to their employees. So, once an employer offers sick leave, it must allow employees to use available leave for family-care purposes listed in the ESLA.  For more information on the ESLA, please refer to this earlier article.

Under the recent amendment to the ESLA, employees must now be permitted to take sick leave for the “personal care” of a “covered family member.”

  • “Covered family member” includes an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Chicago Employers Must Permit Time Off For COVID-19 Vaccination, Including Paid Time Off For Mandatory Vaccinations

Pursuant to the Chicago Vaccine Anti-Retaliation Ordinance that took effect on April 21, 2021, Chicago workers – including both employees and independent contractors – now have certain protections designed to safeguard access to a COVID-19 vaccination. Under the Ordinance, an employer, defined as any person or entity that engages the services of one or more individual for payment:

  • May not take adverse action against any worker for taking time during scheduled work time to obtain a COVID-19 vaccination;
  • May not require a worker to get vaccinated only during non-working (non-shift) hours; and
  • Must permit workers to use accrued or available paid time off, including but not limited to paid sick leave, for the purpose of getting vaccinated (as discussed here, the Illinois Department of Labor has more broadly encouraged all Illinois employers to permit employees to use available paid time off for this purpose).

In addition, if an employer has made vaccination mandatory for workers, then the employer:

  • Must compensate the worker for time, up to 4 hours per vaccine dose (one or two doses, as required based on the type of COVID-19 vaccine received), that the worker takes to get the vaccine, if the

Illinois Employers Must Report Gender, Race, Ethnicity and Compensation Data and Practices

Under amendments to the Illinois Business Corporation Act and the Illinois Equal Pay Act, certain corporations will be required, beginning in 2023 and continuing thereafter, to report data concerning the gender, race, and ethnicity makeup of their workforces, along with information about their compensation practices and efforts to comply with equal pay laws.  Much of this information will become public, and failure to report the necessary information can lead to significant penalties.

EEO Data Reporting

Illinois domestic corporations and foreign corporations authorized to do business in Illinois are already required by the Illinois Business Corporation Act to file certain annual reports with the Secretary of State.  Beginning with the corporation’s annual report filed on and after January 1, 2023, any such corporations which are also required to file an Employer Information Report EEO-1 with the Equal Employment Opportunity Commission (“EEOC”) must include with their annual report “information that is substantially similar to the employment data reported under Section D of the corporation’s EEO-1” report.

Employers should be aware that data on the gender, race and ethnicity of each reporting corporation’s employees will be published by the Secretary of State on its website within 90 days of receipt.

Equal Pay Registration

Illinois Tightens Restrictions on Use Of Criminal Conviction Information

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

US COVID-19: Under the American Rescue Plan, Providing FFCRA Leave Remains Voluntary

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

US COVID-19: Illinois DOL Issues COVID-19 Vaccine Compensation/Leave Guidance

March 11, 2021

Categories

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

US COVID-19: COVID-Related Leave – When Does The FMLA Apply?

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

US COVID-19: DOL Issues FMLA, FFCRA Guidance

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

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