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Sexual Harassment Prevention Training Now Required For Illinois Employees – Is Your Training Compliant?

Employers in recent months have understandably been laser-focused on COVID-19. However, Illinois employers – including employers who are largely based outside of Illinois but have even one employee who works in Illinois – should be mindful of their new obligation to provide annual sexual harassment prevention training before the end of the year (and yearly thereafter) under the Illinois Workplace Transparency Act (“WTA”) and its amendments to the Illinois Human Rights Act (“IHRA”). Recently, the Illinois Department of Human Rights (“IDHR”) published its Model Sexual Harassment Prevention Training Program (the “Model Training”), which should be used as a guideline for ensuring employers’ own training programs comply with the WTA.

Administration of the Training

All Illinois employers must implement a sexual harassment prevention training program by the end of 2020 and subsequently provide the training on an annual basis. Unlike in some other states, there are no length or format requirements for the training, except that the training must be “interactive,” must be accessible to employees with disabilities, and must be accessible to employees who speak languages other than English.

The minimum content requirements for all employees are:

  • An explanation of sexual harassment consistent with the definition provided in the IHRA;
  • Examples of conduct that constitutes unlawful sexual harassment;
  • A summary of federal and Illinois law concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of responsibilities of employers in the prevention, investigation and corrective measures of sexual harassment.
  • On April 28, 2020, IDHR released

    U.S. COVID-19: Biometrics and Business Re-Opening

    Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

    To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

    • Non-contact infrared thermometers that use lasers to measure temperature from a distance;
    • Thermal imaging cameras that detect elevated skin temperatures compared against a sample of average temperature values;
    • Monitoring systems that use thermal and color visual imaging to detect fevers in high-volume pedestrian areas; and
    • “Wearables” that can use radiometric thermometry measuring electromagnetic wave emissions.

    While temperature screening has been endorsed by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission, and various state and local governments, biometric privacy laws have not been suspended or amended.  The Illinois Biometric Information Privacy Act (“BIPA”) regulates the possession, collection, capture, purchase, receipt, and sale of “biometric identifiers” and “biometric information”—defined to include retina or iris

    U.S. COVID-19: Returning High Risk Employees To The Workplace: Best Intentions Could Be Bad News For Employers

    Employers preparing to reopen their places of business have many logistical considerations, including compliance with state and local health orders relating to face coverings, temperature and wellness screenings, and other measures designed to help keep employees healthy and safe during the COVID-19 pandemic. Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its own “Return to Work” guidance by adding Q&A guidance on how employers should handle a “high risk” employee, i.e., an employee with an existing and known disability that may make the employee more susceptible to severe illness from COVID-19.  The guidance is a helpful reminder to employers that even actions taken with the best of intentions may not comply with legal obligations and restrictions.  Below are three important questions for employers to consider in light of the EEOC’s updated guidance.

    How does the Interactive Process Apply to COVID-Related Requests for Accommodation?

    Under the Americans with Disabilities Act (the “ADA”), employers are obligated to consider requests from a disabled employee for reasonable accommodations to the employee’s work environment that would permit him or her to perform the essential functions of the job. While the EEOC’s earlier guidance addressed the nuts and bolts of the “interactive process” during the pandemic generally (including the timeframe in which employers should respond to requests for accommodation and what qualifies as an “undue hardship” during the pandemic), many employers were left questioning how the outbreak of COVID-19 would impact their

    U.S. COVID-19: OSHA & Your Reopening Plans: A Step-By-Step Guide for Employers

    As state and local governments begin to ease restrictions on businesses and increasingly look to “reopen” economic activity, employers are evaluating how to safely return employees to the workplace. This preparation must include not only understanding the parameters of state and local orders (which often include basic social distancing measures, such as staying 6 feet apart, or requiring employees to wear face coverings), but also considering obligations under standards set by the federal Occupational Safety and Health Administration (“OSHA”).

    Below is a guide for employers to consider as they evaluate safe return-to-work strategies during the ongoing COVID-19 pandemic. Please consult BCLP’s additional guidance for a broader discussion of other considerations when developing a “reopening plan.”

    Step 1: Review state and local orders to determine whether a business or workplace is permitted to reopen.

    As an initial step, an employer must determine whether, when and to what extent it can open and maintain in-person operations. State and local orders vary in their definitions of “essential businesses” permitted to operate. For example, Georgia’s recent “reopening” orders only grant a small subset of businesses permission to reopen. BCLP is tracking the current status of state and local shelter-in-place orders nationwide, which are changing regularly.

    Step 2: Review OSHA’s COVID-19 Guidance to understand and implement broadly applicable recommendations for reducing employees’ risk of exposure to COVID-19.

    An employer should next carefully consider what  steps it must take to comply with the federal Occupational Safety and Health Act (the

    U.S. COVID-19: Mask and Facial Covering Orders—Four Things Employers Need to Know and Do to Comply with New Obligations

    Across the country, state and local governments are considering safe ways to “reopen” their economies and revise some of their strict shelter-in-place orders. One such consideration includes masks and “face coverings,” with many implementing a requirement that members of the public, including employees reporting to work, wear such coverings.  Below are four things that employers should do now to be prepared to comply with mask and face covering requirements as they “reopen” their businesses.

  • Continue to Monitor Public Health Guidance
  • Public health authorities at the federal, state, and local levels are likely to continue revising their recommendations on face coverings as they learn more about COVID-19. For example, last month, the federal Centers for Disease Control and Prevention (“CDC”) issued guidance recommending that individuals wear “cloth face coverings”[1] in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC makes clear that the purpose of such coverings is primarily to “help people who may have the virus and do not know it from transmitting it to others.” In other words, a face covering primarily protects others from an asymptomatic wearer.

    Although the CDC’s guidance is only a recommendation – and thus not binding – a variety of local and federal agencies rely on the CDC’s guidance generally to identify “best practices” for employers, including the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”). State and local

    U.S. COVID-19: EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations

    April 28, 2020

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    The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance to employers regarding the COVID-19 pandemic. Notably, and in a significant departure from prior guidance, the EEOC advises that employers may administer a COVID-19 diagnostic test to an employee before entering the workplace. The EEOC also clarified employee rights and employer responsibilities relating to accommodations. It will be critical for employers to understand this guidance from the EEOC, as well as orders and related guidance from federal, state, and local authorities, as they prepare to bring employees back to work safely.

    Testing Employees for COVID-19

    The EEOC has previously advised that, under the Americans with Disabilities Act (“ADA”), an employer can only require an employee to undergo a medical test if that test is “job related and consistent with business necessity.” Under this exacting standard, it was not clear whether an employer could test its employees for COVID-19 before entering the workplace. The EEOC has now clarified that, because an individual with the virus will pose a direct threat to the health of others, employers may take steps to determine if employees entering the workplace have COVID-19, even if those steps involve a medical test. Accordingly, an employer may choose to administer COVID-19 testing to employees before they enter the workplace.

    The EEOC reminds employers that, consistent with the ADA, employers should ensure that the tests are accurate and reliable. Guidance from the U.S. Food and Drug Administration describes the rapidly developing field of COVID-19 testing, and advises which

    U.S. COVID-19: New CDC Guidance Allows Potentially-Exposed “Critical Infrastructure Workers” to Remain at Work – with Precautions

    April 23, 2020

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    The Centers for Disease Control and Prevention (“CDC”) recently issued guidance applicable to “critical infrastructure workers,” and safety precautions employers should take when those workers are potentially exposed to COVID-19.

    The CDC has generally recommended that any individual who has recently been in close contact with a person with COVID-19 (someone in their household or family member) should “self-quarantine” at home for at least 14 days, self-monitor for symptoms consistent with COVID-19, and check his or her temperature twice a day. Some employers have been applying this guidance to their employees, instructing any employee with a potential exposure to self-quarantine at home for 14 days.

    Recognizing that certain essential businesses and functions need to continue operating even during the pandemic, the CDC has now updated its guidance for “critical infrastructure workers,” as defined by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”). Personnel (including contracted vendors) in 16 different sectors of work are considered “critical,” including:

    • Federal, state, & local law enforcement;
    • 911 call center employees;
    • Janitorial staff and other custodial staff; and
    • Other designated workers in the following sectors: chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, materials and waste, transportation systems, and water and wastewater.

    Under the new guidance, critical infrastructure workers may be permitted to continue working following a potential exposure to COVID-19. A potential exposure means being in a household or

    U.S. COVID-19: Pennsylvania Orders Workplace Temperature Screenings And Other Workplace Health and Safety Measures

    April 20, 2020

    Categories

    On April 15, 2020, the Pennsylvania Department of Health (“PDOH”) issued an order mandating that essential businesses (other than healthcare providers) which remain open and operational during the COVID-19 pandemic implement certain health and safety precautions.

    The order contains a lengthy list of new requirements, including specific protocols for businesses that discover they have been exposed to a person, either an employee or visitor, with a probable or confirmed case of COVID-19. Among other things, a Pennsylvania business whose employees have been exposed to COVID-19 must implement temperature screenings for all of its employees. For employers in Pennsylvania and elsewhere developing temperature screening protocols for employees and visitors, refer to BCLP’s articles on this subject here and here.

    Required Precautions for All Non-Healthcare Essential Businesses

    The order requires employers to take the following precautions to ensure appropriate social distancing and other best practices for a healthy workplace. Among other things, according to the order, employers must:

    • Maintain cleaning protocols for high-touch areas, including those recommended by PDOH’s April 5, 2020 order regarding building safety and cleaning measures.
    • Provide masks for employees to wear during their time at the business, and require employees to wear masks while at work, except when using break time to eat or drink, in accordance with guidance from the PDOH and the Centers from Disease Control and Prevention (“CDC”). Employers may approve masks obtained or made by employees in accordance with PDOH guidance.
    • Stagger work start and stop times for employees

    U.S. COVID-19: Workplace Temperature Screening: How To Develop and Implement A Screening Protocol

    The notion that U.S. employers would engage in broad-scale temperature screening of employees would have once been essentially unthinkable.  But the realities of COVID-19 are changing the workplace, as least for the time-being.  With the encouragement of the Centers for Disease Control and Prevention (“CDC”) and some state and local governments, and in light of the blessing of the Equal Employment Opportunity Commission (“EEOC”), more employers are now considering the implementation of daily temperature screening[1] before employees enter the workplace.

    In Part 1 of our two-part series on temperature screening, we addressed the question of whether employers may (or must) implement a temperature screening protocol.  Here, in Part 2, we address the question of how to implement such a protocol, i.e. what procedures for temperature screening in the workplace should employers implement? Below are a number of issues for employers to consider:

  • Decide who will be screened. Some employers are screening only critical infrastructure workers who were or may have been exposed to a person suspected or confirmed to have COVID-19.  Other employers are screening all employees, and often are also screening any contract workers and visitors who enter the workplace, unless doing so would be virtually impossible (e.g., a grocery store screening all customers).  Although deciding who will be screened is essentially a business decision, at all times, employers must ensure that employees are selected for screening on a nondiscriminatory basis.
  • Decide who will do the screening. The options for who will do the screening range
  • U.S. COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

    In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

    In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

    Non-Discriminatory Temperature Screening Is Permitted

    Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

    Federal Guidance Supports Temperature Screening In Certain Circumstances

    At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health

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