The Workplace Report with Ancel Glink

As legal challenges continue to mount across the country against federal, state, and local mandates requiring certain employees and high education students to receive a COVID-19 vaccine and/or comply with testing requirements, notable legal cases have popped up that many local government employers should know. Below are two cases we recommend watching closely. Justice Sotomayor Denies Emergency Injunction Application The United States Supreme Court weighed in (or, in this case, refused to weigh in) on New York City Public School's vaccination mandate for teachers and staff. On Friday, October 1, 2021, Justice Sonya Sotomayor, assigned to handle emergency motions from the Second Circuit Court of Appeals, denied an emergency application for injunctive relief (a legal remedy used to restrain or prohibit a party from conducting an act) by a group of public-school teachers challenging the school district's mandate. According to the New York City Department of Education's (DOE) ...

Yesterday, President Joe Biden announced that employees working for private sector businesses with 100 or more employees must receive the COVID-19 vaccine. Under the "Path out of The Pandemic: President Biden's COVD-19 Action Plan" , the Occupational Safety and Health Administration will issue an Emergency Temporary Standard (ETS) mandating covered employees to either receive a vaccination or submit to weekly testing. Under the new ETS, unvaccinated employees must produce a negative COVID-19 test at least once a week before returning to work. President Biden's new directive also calls for the Center for Medicare & Medicaid Services (CMS) to require employees of health care facilities that receive Medicare and Medicaid reimbursement to receive the vaccine. In addition, the federal government will also require employees of federal contractors to be fully vaccinated or comply with weekly testing and other mitigation measures. Approximately 100 million employees will ...

The following is a re-post of an article  from  The Municipal Minute , an Ancel Glink local government blog edited  by  Julie Tappendorf   ... It seems that almost as soon as we post something about new COVID-19 guidance, that guidance has changed. But, we did want to update you on a recent Executive Order issued by the Governor that extends the time-frame for the new vaccine mandates for certain Illinois workers, including healthcare workers, school personnel, and higher education personnel. In Executive Order 2021-22 , the Governor updated EO 2021-20 which had set a deadline for vaccine compliance for a first shot of September 5, 2021. The deadline for covered workers to get the first shot is now September 19, 2021. This new vaccine mandate applies to health care workers (as defined in the EO), school personnel (also defined in the EO), and higher education personnel (defined in the EO). Until these personnel are fully vaccinated, they must comply with certain...

On Thursday, August 26, Governor J.B. Pritzker issued a press release detailing new masking mandates for indoor activities throughout the State of Illinois and vaccination requirements for healthcare and education employees and higher education students. In addition, Illinois Department of Public Health Director Dr. Ngozi Ezike noted that many COVID-19 hospitalizations, cases, and deaths have resulted from unvaccinated individuals. Below is a summary of the mitigation measures the State of Illinois will roll out to stop the spread of COVID-19. Masking Requirements Starting on Monday, August 30, all Illinois residents over two years old must wear a mask indoors. This requirement does not extend the wearing of masks outdoors, but it is advised that public members in large outdoor crowds wear a mask. This announcement applies to all members of the public—regardless of vaccination status. Employers can find guidance on face coverings in the workplace by visiting the IDPH website here . CO...

In another step to bringing clarity to mandatory COVID-19 vaccines, the Supreme Court recently refused to hear a challenge to Indiana University's student vaccination mandate. Justice Barret, who handles emergency appeals arising out of the United States Court of Appeals for the Seventh Circuit, which encompasses the state of Indiana, declined to hear the case without comment. The decision marks the first time that the Supreme Court has dealt with a case testing the legality of a COVID-19 vaccine mandate. Indiana University's policy requires all students to be vaccinated against COVID-19 unless they are exempt for medical or religious reasons. Exempt students must wear masks and be tested for the virus twice a week. Eight students sued the University, arguing that the policy violated their constitutional rights to "bodily integrity, autonomy and medical choice." In July, a federal District Court Judge rejected the students' claims, finding that the "balance...

Last year, we reported  on the Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia , in which the Court decided that the Title VII of the Civil Rights Act of 1964 prohibited employers from discharging employees based on their sexual orientation or gender identity. When Bostock was announced, legal scholars and practitioners alike struggled to predict the implications of the Court’s decision, especially in jurisdictions where civil rights protections based on sexual orientation and gender were not formerly developed. Illinois, however, adopted state-level protections against discrimination based on sexual orientation and gender identity in 2006 . The Illinois Human Rights Act (“Act”) was amended at that time to prohibit discrimination on the basis of sexual orientation, which was defined as a person’s “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated s...

Amending the Illinois Constitution is no easy feat. Article XIV , entitled “Constitutional Revision,” provides the legal procedures for making changes to the supreme law of the State. These provisions require that a proposed amendment be placed on a ballot for Illinois voters and approved by either three-fifths of those who vote on the amendment or by a majority of those voting in the relevant election altogether to be adopted. The current Illinois Constitution was adopted in 1970 and has been amended 14 times —the last amendment passed in 2016. In late May, legislators took the first step in the amendment process: both chambers passed Senate Joint Resolution Constitutional Amendment 11 (“SLCRA 11”), which will appear on the ballot during the November 2022 election. If adopted by voters, this provision would amend the Illinois Bill of Rights to include a “Workers’ Rights Section” establishing the fundamental right of workers to organize and bargain collectively for their interests re...

With another legislative session in the books, the Illinois General Assembly (IGA) sent a litany of labor and employment-related bills to the Governor's desk. Below is a synopsis of all new updates, including bills awaiting Governor Pritzker's signature or that he already signed: Illinois Freedom to Work Act (IFWA) The Illinois General Assembly made a series of notable changes to the IFWA in S.B. 0672 that employers should know regarding restrictive covenants (non-compete agreements) in employment contracts: Non-compete agreements now include a salary threshold where an employee must earn at least $75,000 per year for an employer to enforce the agreement. The salary threshold for non-compete agreements increases to $80,000 per year by 2027, $85,000 per year by 2032, and $90,000 per year by 2037. Such agreements for employees terminated, furloughed, or laid off due to the COVID-19 pandemic are unenforceable unless compensation provided to the employee at the time of separation ...

On July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) released joint guidance for employers and employees regarding the long-term health effects of COVID-19 as it applies to federal disability law. In addition, the guidance provides clarification about which manifestations of COVID-19 may allow an employee to claim the protections under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (Rehab Act). According to both agencies, patients experiencing “long COVID” may be covered under the ADA or Rehab Act based on an actual disability arising from their exposure to the virus. Long COVID cases have been observed in people whose symptoms persist beyond their infection period, ranging from lingering fatigue to severe organ damage. An “actual disability” under the law must substantially limit one or more of the “major life activities” of a person, which might include walking, standing, lifting, speaking, breathing, c...

With the COVID-19 pandemic still in full force, the U.S. Center for Disease Control and Prevention (CDC) has recently reversed its guidance on masks being worn in the workplace. As the Delta variant continues to spread and an increase in the number of new coronavirus cases are reported each day, the CDC announced that employers may want to reinstate a mask requirement within the workplace in areas with high or substantial COVID-19 transmission rates, which encompasses about 63% of U.S. counties. Back in May, the CDC stated that vaccinated people need not wear masks indoors or outdoors, based on the protection provided by the COVID-19 vaccines. However, since then, the highly transmissible Delta variant has emerged and is causing an increase in new outbreaks within the under-vaccinated areas of the country. Although the CDC reported an average of 12,000 new coronavirus cases per day back in mid-June, the agency has since reported an increase of over 40,000 new cases per day with the De...

On July 9, the Seventh Circuit Court of Appeals issued its decision in Demkovich v. St. Andrew the Apostle Parish, Calumet City, and The Archdiocese of Chicago , an employment discrimination case that arose when a Catholic church terminated a music director following several years of alleged harassment by the parish’s pastor. The music director, a gay man who struggles with diabetes and metabolic syndrome, claimed that he was subjected to frequent insults and hostility from the pastor and was ultimately terminated after marrying his partner. In his first complaint, the music director claimed that the church and Archdiocese unlawfully discharged him under Title VII and the Americans with Disabilities Act (ADA). The district court dismissed the case because the defendants successfully raised the ministerial exception, which shields religious organizations from government interference with their ability to select and control their ministers and protects them from certain employment lawsui...

On July 1, the U.S. Department of Labor (DOL) announced its renewed dedication to promoting Short-Time Compensation (STC) programs across the country and awarded grants to several states to assist with their economic recovery in the wake of the COVID-19 crisis. The DOL announced that the Illinois Department of Employment Security (IDES) would receive just over $4 million to “support the state’s business community as it continues its economic recovery” through STC programs. STC, also known as work-sharing, allows employers to cut employees’ work hours without laying them off by providing partial unemployment benefits to employees with reduced hours. While several other states have had work-sharing programs in place for some time, this grant from the DOL will help Illinois implement an STC scheme for the first time. Illinois passed legislation in late 2014 authorizing IDES to implement an STC program, and this new grant provides further incentive to continue that process. Once IDES de...

In the debate over whether college athletes can seek payment for their participation in sports, Illinois, one of several states across the country, has passed legislation outlining how and when student-athletes can receive compensation. On Tuesday, July 29, Governor Pritzker signed the Student-Athlete Endorsement Rights Act (Act) . The Act, which has already gone into effect, provides that a student-athlete enrolled at a postsecondary educational institution, including private and public colleges, universities, and community colleges, may be compensated for using their name, image, likeness, or voice, subject to certain restrictions within the Act and any reasonable policies adopted by their schools. The Act defines the rights and obligations for postsecondary schools with athletics programs. Schools covered by the Act are barred from creating rules or entering into contracts with student-athletes, which prevent them from being compensated in a manner consistent with the law’s provisio...

Summertime has arrived, with its typical indicators: unbearable humidity, ice cream trucks, baseball, and—yes—droves of young students looking for part-time gigs. As students from middle schools and high schools around Illinois begin to look for summer employment, employers should revisit their policies on hiring student employees. Below, employers will find great tips on how to properly hire youth workers. Review Work Permit Requirements   Aside from several exemptions for agricultural workers, small domestic tasks, and several other special categories of employment, employers wishing to hire minors between the ages of 14 and 16 must obtain and file an employment certificate under Illinois’s Child Labor Law (“the Act”). These permits allow minors to work during summer breaks and outside of school hours. A permit must be signed by either a municipal or county school superintendent or a delegated authority before being sent to the minor’s employer, the Department of Labor, and the ...

Usually, the U.S. Supreme Court makes headlines when it releases critical decisions on notable cases. However, on occasion, the high court makes headlines when they refuse to hear a case, which allows the lower court's opinion to stand. This occurred recently in a case about applying Title IX's equal protection provisions to school bathrooms for transgender students. You can read our post about the U.S. Department of Education's recent Notice of Interpretation , which applies Title IX's prohibition on discrimination to include a student's sexual orientation and gender identity here . In Grimm v. Gloucester County School Board , the 4th Circuit determined that a local county school board violated Title IX when it barred a transgender high school student from using the bathroom aligned with that student's gender identity. In 2014, a Gloucester County, Virginia high school allowed Gavin Grimm, a transgender student, to use the boy's bathroom. However, parents c...

On June 16, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR), which enforces Title IX of the Education Amendments of 1972, released an official notice of interpretation regarding the Supreme Court’s decision in Bostock v. Clayton County . The Court in Bostock held that employer’s prohibition against discriminating “on the basis of sex” applies to an employee’s sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. OCR’s notice extends protections afforded by Bostock to students falling under Title IX’s protection. Courts and administrative agencies often rely on interpretations of Title VII on how to interpret provisions in Title IX because of similarities in both laws. In its letter, OCR indicates that the “Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock . . . properly guides the Department’s interpretation of discrimination ‘on the basis of sex’ under Title IX . . . ...

The Illinois Second District Appellate Court recently issued a decision finding that holiday pay was not pensionable under the language of a collective bargaining agreement because it was not “fixed” and thus was not “salary under the Pension Code. In Village of Hanover Park v. Board of Trustees of the Village of Hanover Park Police Pension Fund , 2021 IL App (2d) 200380 (May 28, 2021), the Village of Hanover Park (the “Village” and Metropolitan Alliance of Police Chapter 102 (“MAP”), the union for the patrol officers of the Village, entered into a Collective Bargaining Agreement (CBA). Several sections of the CBA set the terms for holiday pay.  Section 6.1 of the CBA established a list of nine days that  “[a]ll police patrol officers covered by [the CBA] shall have *** considered as holidays.”  Section 6.2 of the CBA governed how holiday pay was awarded to the patrol officers. Section 6.3 provided the eligibility requirements for police patrol officers to receive holiday...

In late May 2021, both houses of the Illinois General Assembly passed SJRCA0011 , a ballot measure that, if passed by voters, would amend the Illinois Constitution, creating a constitutional right for Illinois workers to unionize. The ballot measure would amend Section 25 of Article I of the Bill of Rights of the Illinois Constitution. The ballot measure states: Employees shall have a fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and workplace safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requi...

Last month, the 7th Circuit Court of Appeals affirmed a lower court’s decision in Vesey v. Envoy Air, Inc. , which ruled against an airline agent claiming she was harassed based on her race and fired in retaliation for reporting the harassment. To support her claims, the plaintiff, Ms. Ciara Vesey, pointed to a series of workplace-related complaints. She told Envoy’s human resources department that her superiors, Ms. McMurray and Ms. White, committed favoritism and were biased against her. In addition, Vesey claimed after she reported that her supervisors, McMurray and White, harassed and retaliated against her. Vesey also alleged that another employee, Mr. Masengarb, directed racist remarks towards her. Vesey also asserted in her appeal deposition evidence not considered by the lower court where White allegedly pressured another employee into filing complaints against Vesey. Envoy responded to Vesey’s complaints and found most of her accusations unfounded. However, they did fire Masen...

Many local governments with public safety employees have faced the challenge of containing costs of benefits granted pursuant to the  Public Safety Employee Benefits Act  (PSEBA), entitling employees and their dependants to lifetime health insurance benefits at no charge when an employee suffers a disabling line of duty injury or fatality. Identifying a “basic insurance plan” that PSEBA beneficiaries will receive was a statutory right for employers under PSEBA and one way that employers contained these costs. Often this meant that beneficiaries were transferred from a premium benefit level to a more affordable plan when the employer offered more than one level of coverage. The state legislature has changed that.  HB 2568  entitles unionized PSEBA beneficiaries to receive the health insurance coverage identified in the applicable collective bargaining agreement and makes the available plans a mandatory subject of bargaining. This change means that the coverage level f...

For the first time, a federal court has ruled on the legality of an employer mandate requiring employees to receive the COVID-19 vaccine. U.S. District Judge Lynn N. Hughes for the Southern District of Texas upheld Houston Methodist’s vaccine requirement for its existing employees and new hires. In March 2021, Houston Methodist, a major hospital system located in Houston, Texas, implemented a vaccine requirement for their employees. The hospital system employs over 26,000 people, and of those, 178 were suspended without pay for failing to comply with such requirement. The Plaintiffs in this lawsuit included 117 of Houston Methodist’s employees who challenged the requirement, contending that the vaccines are experimental and dangerous, comparing such a requirement to the Nazi medical experiments on concentration camp prisoners during the Holocaust. Among the other claims made by the Plaintiffs here include requiring vaccination would force employees to break the law, the employees wer...

Lately, many of us have heard the news of system hacks or data dumps where nefarious actors accessed sensitive information and exploited its use. Some may think that gaining access to private servers requires years of intense technical skill, unlimited resources, and an intention to steal ONLY YOUR information. In reality, many data hacks can be done relatively quickly and cheaply to obtain all types of information. Here are few tips employers can use to safeguard themselves and their employees. Adopt a Password Management Policy Employers should adopt a password management policy for all devices, web services, and applications. The policy should include rules for sharing user access to web services and applications, password construction, and multi-factor authentication requirements. Many web services and applications designed for business operations allow license holders to have multiple logins. Instead of creating a single account with one username and password, employers should con...

Since the federal government initiated emergency use authorization (EAU) for COVID-19 vaccines, employers have been chopping at the bit for more precise guidance on vaccinations for employees in the workplace. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued that guidance . Below is a summary of that guidance provided from an EEOC press release on the new guidance: Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to ...

During the pandemic, many employers were caught off guard as COVID-19 drastically changed the nature of the workplace. One area that has caused some confusion—especially for local governments—is the changes to premium benefits under COBRA after President Biden passed the American Rescue Plan (ARP) into law earlier this year. What is COBRA? The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides workers and their families with a temporary extension of health benefits through their (former) employer’s group health insurance plan. A qualifying individual can receive benefits under COBRA for various reasons, including a voluntary or involuntary loss of employment, forced reduction of work hours, temporary leave of absence, death, divorce, or other life events—this is called a “qualifying event.” Employers with 20 or more employees in the prior calendar year must offer a continuation of coverage where, typically, such a change in employment would prompt benefit coverage to end...