The Workplace Report with Ancel Glink

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 ...