On May 28, 2020, Governor J.B. Pritzker, in conjunction with the Department of Commerce and Economic Opportunity (DCEO) and the Illinois Department of Public Health (IDPH), issued industry-specific Return to Work toolkits and training requirements covering proper social distancing, cleaning, provision and proper use of face coverings, as well as other training and safety procedures.
The following day, the governor issued Executive Order 2020-38 enforcing the Return to Work toolkit and training requirements.
The Order’s “Enforcement Provision” states:
This Order may be enforced by State and Local law enforcement pursuant to Section 7, Section 15, Section 18, and Section 19 of the Illinois Emergency Management Agency Act (“IEMAA”), 20 ILCS 3305/1 et seq.
Businesses must follow guidance provided or published by the Illinois Department of Commerce and Economic Opportunity regarding safety measures during Phase III, and the Illinois Department of Public Health, local public health departments, and the Workplace Rights Bureau of the Office of the Illinois Attorney General with respect to Social Distancing Requirements. Pursuant to Section 25(b) of the Whistleblower Act, 740 ILCS 174, businesses are prohibited from retaliating against an employee for disclosing information where the employee has reasonable cause to believe that the information discloses a violation of this Order.
Requirements for all Businesses
The Order requires that all businesses:1
- continue to evaluate which employees are able to work from home and are encouraged to facilitate remote work from home when possible;
- ensure that employees practice social distancing and wear face coverings when social distancing is not always possible;2
- ensure that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing;
- ensure that all visitors (customers, vendors, etc.) to the workplace can practice social distancing; but if maintaining a six-foot social distance will not be possible at all times, encourage visitors to wear face coverings; and
- prominently post the guidance from the IDPH and Office of the Illinois Attorney General regarding workplace safety during the COVID-19 emergency.
The DCEO and IDPH “guidelines” published in conjunction with this Order are industry-specific,3 but generally include lists of specific minimum guidelines for:
- General Health, including guidance on social distancing.
- Human Resources and Travel Policies, including a statement that “[a]ll employees should complete health and safety training related to COVID-19 when initially returning to work. Resources to design a training are posted on the DCEO Restore Illinois guidelines website.”
- Health Monitoring, including guidance on taking temperature checks, wellness screenings, and isolation for infected employees.
- Physical Workspaces, including guidance on spacing, elevator capacity, and seating arrangements.
- Disinfecting, including guidance on how to clean workspaces in accordance with CDC protocols.
- Staffing and Attendance, including guidance on workplace capacity.
- External Interactions, including guidance on on-site visitors.
With all these “guidelines” and “requirements,” many employers ask, among other questions: What liability will we face if compliance is not perfect? What obligations do employers have to ensure that employees walk six feet apart, wear a face covering appropriately, and not stand too close at the microwave line?
Governor Pritzker has made a good-faith attempt to “enforce” these provisions. The cited sections of the IEMAA, however, reference the basis of the governor’s authority, but do not place any affirmative liability or penalties of non-compliance on businesses or employers.
In fact, the governor’s prior attempt to impose fines or jail time was repealed. On May 15, 2020, the governor directed the IDPH to add an emergency rule called “Pandemic or Epidemic Respiratory Disease – Emergency Provisions” to the Control of Communicable Diseases Code, 77 Ill. Adm. Code 690. This rule included “the power to seek penalties pursuant to Section 8.1 of the Illinois Public Health Act, including seeking convictions of Class A misdemeanors that can result in up to 364 days in jail time and/or fines of up to $2,500.” However, after receiving negative feedback from business owners who questioned the governor’s authority to impose criminal penalties for non-compliance with the DCEO and IDPH “guidelines” and his Executive Order,4 he repealed the emergency rule on May 20, 2020.
Thus, until the Illinois legislature takes some additional action to enact legislation governing this area, the “minimum guidelines” are just that – guidelines.
However, while employers can rest assured (for now) that they need not police their employees’ every step and monitor walking distances and strictly monitor face covering placement, there are a variety of other ways employers can be liable for failing to make good-faith efforts to enforce these guidelines.
Beyond Illinois – Penalties for Non-Compliance
Although the governor may be limited in his ability to enforce his Executive Order or the DCEO and IDPH guidelines by way of fines, jail time and other criminal penalties, there are a host of other ways in which an employer’s failure to comply with the guidelines could result in adverse consequences.
- Whistleblower Claims
The Executive Order expressly states that “businesses are prohibited from retaliating against an employee for disclosing information where the employee has reasonable cause to believe that the information discloses a violation of this Order,” and could face penalties under Section 25(b) of the Illinois Whistleblower Act, 740 ILCS 174. While this section does not create affirmative liability for non-compliance with the new guidelines, an employee who complains that the guidelines are not being followed has retaliation protection.
- OSHA and Workplace Safety Claims
Under the “General Duty Clause” of both the state and federal Occupational Safety and Health Acts, employers are obligated to provide a safe and healthy workplace environment. The state and federal Occupational Safety and Health Administration (OSHA) may issue a “General Duty” citation against an employer that has failed to keep the workplace free of a hazard to which its employees were exposed, where the hazard was recognized, the hazard was causing or was likely to cause death or serious physical harm, and there was an available and feasible method to correct the hazard. Depending on the citation issued by OSHA, a serious violation can result in a maximum penalty of $13,260, and a willful or repeat violation can cost up to $132,598. Furthermore, citations often include multiple items, which can multiply these figures.
Based on the current data available regarding COVID-19 and the ease with which it spreads and infects populations, OSHA could justify issuing such a citation where an employer fails to follow the Executive Order or the DCEO and IDPH minimum guidelines. However, good-faith attempts at compliance could fend off a fine in the “serious” or “willful” range.
- Employment Discrimination Claims
Employers that fail to follow the Executive Order or the DCEO and IDPH minimum guidelines risk potential exposure with regard to state and federal discrimination laws. It is not difficult to imagine the ways in which plaintiffs’ attorneys are likely to cite non-compliance, particularly in age and disability discrimination claims, as failure to follow the Executive Order or the minimum guidelines may adversely affect high-risk employees, such as older and disabled individuals.
- Wrongful Death Claims
Evidence that an employer acted “negligently” or “recklessly” by failing to follow the Order or the DCEO and IDPH minimum guidelines may be used to support wrongful death tort claims brought by employees or their families.
- Workers’ Compensation Claims
Finally, with contact tracing and evidence of an employer’s lack of compliance to the state guidelines, to the extent employees are able to establish that they were exposed to COVID-19 out of and in the course of employment, there may be liability for workers’ compensation claims.
Although there is no direct employer liability (at this time) for lack of compliance with the Return to Work guidelines, training and toolkits, failure to comply will provide a basis for employees to bolster other avenues of relief or liability including OSHA-based complaints and accompanying fines, as well as liability for discrimination, tort, and workers’ compensation claims.