The Workplace Report with Ancel Glink

Recently, the Illinois Department of Labor (IDOL) published updated reporting requirements and recordkeeping guidance for Illinois state and local government employers regarding COVID-19 workplace exposures. Reporting Requirements In addition to the requirement for state and local government employers to report all work-related fatalities within eight (8) hours and all work-related hospital admissions, amputations, and losses of an eye within 24 hours to Illinois OSHA by calling (217) 782-7860, employers now must report a COVID-19-related fatality, if the fatality occurs within 30 days of exposure at work. Employers must also report any COVID-19-related hospital admission within 24 hours of exposure at work. Upon a reported case of COVID-19, Illinois OSHA may investigate. If the investigation reveals or clearly identifies a work-related exposure, Illinois OSHA will review the circumstances of the exposure to determine if a violation of the Illinois Occupational Safety and Health Act o...

COVID-19 has brought numerous headaches to the administrative processes that run most employers' and employees' daily lives. One such headache is employer compliance with the Consolidated Omnibus Budget Reconciliation Act (COBRA). As employers know, COBRA generally requires employers with 20 or more employees to offer employees and their families a temporary extension of health coverage (known as a continuation of coverage) for a limited period. You can read more about COBRA compliance, continuation coverage assistance, frequently asked questions, and more by clicking here . Under the statute, employees may elect COBRA continuation coverage under their employer's group health plan up to 60 days after a qualifying event. As a result of the pandemic, the U.S. Department of Labor (DOL) and Internal Revenue Service (IRS) jointly published the Extension of Certain Timeframes for Employee Benefit Plans , which contains temporary rule changes to COBRA. The new rules extend traditi...

The Illinois Supreme Court recently issued a narrow opinion weighing in on the definition of home offices. In Tabirta v. Cummings , Plaintiff, a truck driver, was driving through the State of Ohio when another truck driver collided with the plaintiff. Plaintiff suffered serve injuries causing him to lose both of his legs. The defendant driver is an employee of the Gilster-Mary Lee Corporation (GML), which is a food manufacturing company located incorporated in Missouri but is headquartered in Chester, Illinois located in Randolph County. Plaintiff filed suit in Cook County, Illinois. GML challenged the suit stating that venue was improper, which means Cook County was not the proper place to file the suit because that is not where the action took place nor did GML have any contacts with Cook County related to the lawsuit. Plaintiff argued that he could file and litigate the suit in Cook County because GML maintained an “other office” in the county. Plaintiff discovered that GML employed...

It's that time of year again... No, not the crinkling of dry leaves or heavenly smells of pumpkin spice lattes-it's election time, which means it's time to dust off that social media policy! Elections pose a unique challenge to human resource departments and employment attorneys. Although we unequivocally support an employee's right to exercise their civic duty and participate in the electoral process, employers should be mindful of the workplace issues that may arise around elections. This year is particularly notable because (1) this will likely be a contentious election spanning multiple days (and perhaps weeks), and (2) the election is taking place during a global pandemic-thus prompting employees to shift any discussions from now-empty offices to social media. The U.S. Constitution protects our rights to engage in free speech and assembly. In the employment context, however, free speech rights have been tailored to balance workers' rights and consider an employ...

Last month, the U.S. Department of Labor issued guidance about remote timekeeping that employers should take a look at. You can view the guidance by clicking here . As we have previously discussed , employees who make less than $684 per week and perform white-collar work must be paid for all authorized time they spend performing duties in the scope of their employment. This has always presented a challenge to employers, as what constitutes authorized time can sometimes be unclear. Courts have generally found that it includes all time that the employee spent performing job duties that the employer knew or should have known about. Tracking authorized time can be more difficult when employees work from home. To deal with this we have encouraged employers to develop remote timekeeping policies to keep track of employee time spent working from home. Ideally, this would include an electronic system that employees can log into at the start of their day and log out of at the end of it and tha...

The following is a re-post of an article  from  The Municipal Minute , an Ancel Glink local government blog edited  by  Julie Tappendorf   ... Last week, an Illinois circuit court issued a ruling in the case brought by the Illinois Municipal League (IML) against the State of Illinois to challenge the recent statute making November 3, 2020 (Election Day) a state holiday and requiring local government offices to close. The IML had argued that it was an unfunded mandate to municipalities, and the circuit court agreed in its ruling last week. We have been asked whether the ruling extends beyond the two municipalities that were named as plaintiffs in the case (Southern View and Bolingbrook) to apply to other local governments. The ruling states that the statutory amendment that requires government offices to close on Election Day (i.e., Section 2B-10) "does not apply to local governments such as municipalities - including those municipalities that are members of IML ...

Throughout the pandemic, the EEOC has maintained a list of frequently asked questions for employers regarding Coronavirus-related issues. The FAQs are informative, and I suggest that employers take a look at them, which they can do by clicking here . Last week the EEOC updated some of the FAQs, and I have highlighted a few of those updates below: Employers Can Require Employees to Take a COVID-19 Test Employers can require any employee to take a COVID-19 test before entering the workplace. The Americans with Disabilities Act (ADA) requires any mandatory medical test to be “job-related and consistent with business necessity” and in the EEOC’s opinion, COVID-19 tests fall into this category because the virus poses a direct threat to the health of others. If an employee refuses to get tested he or she can be barred from entering the workplace. Employers cannot require teleworking employees to take a COVID test absent special circumstances. Employers can also ask employees entering the wo...

As we discussed last year , the Workplace Transparency Ac t requires employers to report adverse judgments and negative rulings related to sexual harassment to the Illinois Department of Human Rights. The first reporting period runs from January 1, 2019, to December 31, 2019, and the report must be filed by October 31, 2020. Next year the reporting deadline will be July 1, as it will be each year after that. You can download this form (to access, click here ) to report any adverse judgments or negative rulings, and either mail it to the Illinois Department of Human Rights or email it ( IDHR.Section2-108@Illinois.gov ). Here is a list of FAQs for employers published by the Department of Human Rights about this reporting. The reporting requirement applies to all employers. An adverse judgment or negative ruling related to sexual harassment is a final, non-appealable judgment or administrative ruling entered in favor of the employee and against the employer. The adverse judgment or admi...

With the temporary deferral of most employees’ portion of the Social Security payroll tax set to begin yesterday, employers had been hoping for guidance from the Treasury Department on compliance, Late Friday,  that guidance came , but some would say in true IRS fashion it is clear as mud. To recap, President Trump issued an Executive Memorandum (not an Order) on August 8th which directed the Treasury Department to issue guidance fulfilling his intention to temporarily suspend the withholding of that portion of the Social Security payroll tax attributable to employees who earn less than $4,000 in a bi-weekly payroll period (roughly $104,000 annually). The obligation to pay the Social Security tax is not forgiven, just postponed until next year.  This raised many questions, such as may the employer continue to withhold the tax and hold it for payment next year; may employees opt out of the deferral; what if an employee leaves employment between now and when the tax is due; is e...

Earlier this month, the Illinois legislature passed temporary legislative amendments to the Public Employee Disability Act ("PEDA"). As public employers may likely know, PEDA provides that public safety employees are guaranteed up to 12 months of full pay in the event they are injured in the line of duty (the same standard as that which is applied in worker's compensation claims) and are unable to perform their duties. The new legislation, part of Senate Bill 471, which also enacted mask requirements and penalties reported about earlier, states the following: (b-5) Upon the occurrence of circumstances, directly or indirectly attributable to COVID-19, occurring on or after March 9, 2020 and on or before December 31, 2020 which would hinder the physical recovery from an injury of an eligible employee within the one-year period as required under subsection (b), the eligible employee shall be entitled to an extension of no longer than 60 days by which he or she shall continue...

With September 1st upon us in under a week, we not only have to face the end of summer but also whether or how to implement the presidential executive memorandum providing relief from Social Security payroll tax withholdings for employees for the remainder of the year. It probably needs no reminder but on August 8th of this year, President Trump issued an Executive Memorandum directing the Secretary of the Treasury to issue guidance that suspends the employee portion of the Social Security payroll tax for employees making less than $4,000 bi-monthly (roughly $104,000 annually). This payroll tax relief for workers only (employers must still pay their portion) would expire at the end of the calendar year. Two immediate problems exist for employers. The first is the fact that the Treasury Secretary has yet to issue guidance on this. A close reading of what the president signed reveals that it is certainly his intention to provide this payroll tax relief, but that’s not exactly what he or...

In recognition of the increase in teleworking since the onset of the pandemic, yesterday the Department of Labor issued new guidance on teleworking . The last teleworking guidance was issued by the Department in 1961. In the guidance, the DOL attempted to address some uncertainties for employers in tracking hours and paying employees who telework. It reaffirmed that an employer is required to pay its employees for all hours worked, including work not requested but allowed and work performed at home; but acknowledges that “confusion over when an employer ‘has reason to believe that work is being performed,’ may be exacerbated by the increasing frequency of telework and remote work arrangements.” The guidance notes that in addition to scheduled hours worked, an employer must pay an employee for unreported work time as long as the employer had “constructive knowledge of additional unscheduled hours worked.” That doesn’t seem all the helpful to employers who are struggling to pay their em...

The EEOC recently issued guidance for employees on the legal use of opioids (to view, click here ) . The guidance is useful not only for dealing with employee opioid use but the use of any legal drug, including cannabis. Here are some important takeaways from the EEOC’s guidance: An Employee Can Be Fired for Using Opioids, or Any Drug, Illegally. It is not a violation of the Americans with Disabilities Act (ADA) or any other law to fire an employee for using illegal drugs. While it is against the law in Illinois to fire an employee for using a legal drug or substance outside of work, this does not apply to illegal drugs. An Employee Cannot Be Fired Solely for Using Opioids, or Any Drug, Legally. If an employee has a prescription for a drug and uses it according to the doctor’s orders, it is likely a violation of the ADA to discipline the employee solely for using the drug. And as discussed above, it is a violation of the Right to Privacy in the Workplace Act to discipline an employee...

On August 8, 2020, President Trump signed an Executive Order ("EO"), providing, among other things, some payroll tax relief to workers. The payroll tax EO delays but does not forgive , the deadline for paying workers’ share of Social Security payroll tax. This delay means that while employees might enjoy a temporary increase in their take-home pay, as of now, the tax will eventually have to be repaid, although the order doesn’t say when. The EO is effective from Sept. 1 through Dec. 31, so it is presumed the taxes will be due at the beginning of next year. The EO applies to people who make less than $104,000 per year. According to many sources, President Trump is assuming that Congress will eventually forgive the deferred payroll tax. The Department of Treasury has been instructed to issue the guidance necessary to implement the EO. As of the date of this posting, no such guidance has been released. The EO raises many unanswered questions, such as what would happen if Congr...

In the midst of the COVID-19 public health emergency, face masks are the new normal. This especially remains true in Illinois with Governor Pritzker’s face mask mandate in place and the State’s authority to fine businesses who fail to require patrons to wear facial coverings. Laminated “face mask exempt” cards have been emerging in response to this mandate, allegedly providing the authority for the cardholder to enter businesses mask-free. Though the ADA violation reporting number cited on the cards is real, the “face mask exempt” cards are not. Common “face mask exempt” cards are the size of a business card, feature a red, white, and blue eagle logo, and state that the cardholder is exempt from ordinances requiring them to wear masks in public. The cards cite the Americans with Disabilities Agency (ADA), the Freedom to Breathe Agency, and occasionally feature the Department of Justice (DOJ) logo. The idea behind the card is that the unmasked cardholder can show it to a business owner...

Are you an employer who is still having trouble convincing staff that it is essential to wear face coverings in the workplace if social distancing cannot be guaranteed? Maybe this will help. As was reported recently by Julie Tappendorf and Eugene Bolotnikov , in Ancel Glink’s sister blog, Municipal Minute , the State is taking further steps to enforce COVID-19 safety guidelines for face coverings and gatherings as follows: State of Illinois Adopts Emergency Enforcement Rules on Face Coverings and Gatherings   Last week, Governor Pritzker announced that his administration filed new IDPH COVID-19 emergency rules for businesses, schools, and child care establishments regarding the use of face coverings and the size of gatherings. The rules became effective on August 7, 2020, and they require people over age two to wear a face-covering (a mask or cloth face covering to cover their nose and mouth) when they are in a public place and unable to maintain at least a six-foot social distan...

The EEOC announced last week that it will allow employees to begin suing their employers for employment discrimination again. Many employees have been unable to do that since March 21 when the EEOC stopped issuing right-to-sue letters due to the Coronavirus. An employee who alleges discrimination by their employer must first file a charge with the EEOC . After the EEOC investigates, if it finds that the employer may have discriminated against the employee, and it fails to broker a settlement between that employee and his or her former employer, then it issues the employee a right-to-sue letter. That letter gives the employee 90 days to file suit against the employer. The EEOC plans to issue all of its past-due right-to-sue letters within six to eight weeks. So there will probably be an uptick in employment discrimination suits in the coming weeks.  Our firm defends employment discrimination lawsuits on behalf of dozens of employers. If you have recently been sued for employment di...

We all know that every day brings more information on best workplace practices during the COVID-19 pandemic. The CDC is no exception. It recently revised guidelines for employees who are exposed to COVID-19, have symptoms, or test positive. The updated CDC guidelines advise that the length of home isolation should be related to symptoms, with the following timelines: Asymptomatic individuals can end isolation after 10 days. Individuals who tested positive and have moderate to mild symptoms can end isolation after 10 days if at least 24 hours have passed without a fever and other symptoms have improved. Individuals who tested positive and have severe illness may need to continue isolation for a full 20 days. Individuals who were exposed to the virus but were never tested and have no symptoms should continue to quarantine for the full 14 days. While testing still is considered by some employers to be somewhat of a gold standard for safety in the workplace, test results are not always det...

What we know about the long-term impacts of COVID-19 is constantly changing…and so is COVID-19 legal guidance. The Families First Coronavirus Relief Act (FFCRA) went into effect on April 1, 2020, the same day that Department of Labor (DOL) issued “temporary” regulations explaining the obligations of employers under the FFCRA’s paid sick time (PSLA) and expanded family medical leave (EFMLA) requirements. The state of New York brought a lawsuit against the U.S. Department of Labor in April challenging provisions of the DOL’s regulations on the FFCRA. The U.S. Court for the Southern District of New York responded to competing motions for summary judgment and generally aligned with New York’s position on the disputed topics, found below. Intermittent Leave Consent Prohibition The DOL guidelines permit employees to take intermittent leave with the consent of the employer and only for qualifying conditions that correlate with a higher risk of COVID-19 infection. The court did not take issu...

The U.S. Department of Labor recently issued new forms for FMLA requests. The form that should be used if an employee needs to take FMLA leave for a personal   medical condition, is available by clicking here . The form that should be used if an employee needs to take FMLA leave to care for a family member is available by clicking here . These forms are optional; employers do not have to require their employees to use them. I would, however, suggest that employers do. The forms contain all the information necessary to validate FMLA leave requests. Additionally, using these forms should expedite DOL investigations of FMLA complaints. As we previously discussed , the FMLA requires most employers, including local governments, to provide employees up to 12 weeks of unpaid leave for medical or family emergencies. When an employee knows in advance that he will need to take leave, the FMLA requires him to tell his employer 30 days before he will take leave for a planned medical procedure ...

Though a COVID-19 vaccine has not yet been introduced, the looming question exists: can an employer require its employees to be vaccinated against COVID-19? Unsurprisingly, the answer is, “it depends.” EEOC guidance treats a future COVID-19 vaccine in the same approach as existing vaccines , meaning an employer may mandate a vaccine in the workplace but an employee remains entitled to an exemption under certain circumstances. An employer may request an exemption based on an ADA disability that prevents him from taking the vaccine. If an exemption is requested, an employer must grant a reasonable accommodation unless it would result in undue hardship to the employer. The ADA defines “undue hardship” as “significant difficulty or expense” incurred by the employer in providing said accommodation.  An employee is also entitled to an exemption if the vaccine would violate his “sincerely held religious belief, practice, or observance” under Title VII of the Civil Rights Act of 1964. Onc...

The Emergency Paid Sick Leave Act (“EPSLA”) mandates employers with 500 or fewer employees to provide paid sick leave to their full and part-time employees. Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled to the average number of hours they work over a two-week period. Employees may take EPSLA leave for any of the following reasons: To comply with a federal, state, or local quarantine isolation order related to COVID-19; To self-quarantine because the employee has been advised by a healthcare professional to do so due to concerns related to COVID-19; The employee is experiencing symptoms of Coronavirus and is seeking a medical diagnosis; To care for an individual who is self-isolating to comply with a federal, state or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; To care for the employee’s son or daughter if his/her ...

The Department of Transportation recently announced that it will not penalize employers who are unable to complete random drug testing of their employees with CDLs because of COVID-19. As we have discussed , employers must drug test employees with CDLs upon their hiring, after an accident, and randomly. These random drug tests must be spaced throughout the year. If an employee tests positive for cocaine, opiates, amphetamines, phencyclidine, or cannabis (this is still true even though cannabis is legal in Illinois), then the employer cannot allow the employee to continue to operate the vehicle requiring the CDL. The DOT’s announcement states that if an employer is unable to conduct the number of random drug tests required by law or cannot conduct them for a period of time due to COVID-19, the Department will not penalize the employer. The employer just needs to document the reasons it was unable to comply. The DOT provides examples of some reasons, like lack of available testing facil...

One workplace phenomenon during the pandemic is that employees have been using less than normal vacation time. It’s likely the result of a number of factors such as increased demand on some workers during this time, fear of losing their job (thus, “saving” their vacation time for payout), an unwillingness to travel (and a lack of open vacation destinations) as well as the relative ease of teleworking. Whatever the reason, employers are wise to address this emerging issue well before year's end where one of two things will likely happen: employees will all clamor to take their vacation time or want a payout of this unused time because they were “unable” to use it. If a flood of employees all request vacation time near the end of the year, employers will face operational issues and may need to deny some of those requests. In addition to facing operational issues, employers who have “use it or lose it” vacation time policies and have or will deny the use of vacation time by w...

Earlier this week, the Department of Labor issued additional guidance for workers and employers discussing how the protections and requirements of the Families First Coronavirus Response Act (FFCRA) impact returning to work. The FFCRA was enacted at the end of March to provide emergency paid sick leave and family leave for certain workers affected by COVID-19. See below for some highlights from the new Department of Labor guidance: If an employee was eligible for extended FMLA leave and used a portion of it prior to being furloughed, they are entitled to their remaining leave upon their return to work. The period of time an employee was on furlough does not count against their FFCRA/FMLA leave entitlement. An employee returning to work after caring for a family member diagnosed with or exposed to COVID-19 is entitled to their same or an equivalent position. However, employers may bring an employee back to work in a position that requires less face-to-face interaction with others. Emp...

Seems like pandemic issues hit employers and workers in waves. Deciphering and implementing FFCRA benefits, worksite closings, furloughs, layoffs, and protecting essential workers were the start. Then as workplaces slowly reopened, employers and workers alike faced the challenges of protecting employees and the public. The current wave on the rise is employers’ concerns surrounding the new school year. School reopening decisions obviously impact employees with school-age children. In turn, school reopening decisions impact employers. It’s not too early to start planning for workplace needs when schools reopen, partially reopen, or don’t reopen in the Fall. Some important considerations include the following: Employees who have not yet exhausted their expanded FMLA leave benefit under the FFCRA may take advantage of that opportunity when the school year starts if their child’s school district has partial or only online learning. This may result in operational disruptions. ...