Though it has been months since the initial cases of people being infected with Coronavirus Disease 2019 (COVID-19) surfaced, many employers in the United States still find themselves unprepared to respond to a local outbreak of the coronavirus. While Illinois and Chicago health officials seem sure that there is no indication of an Illinois outbreak any time soon, employers would be wise to begin preparing a response to an outbreak now rather than waiting until after one occurs. Any outbreak response plan must ensure compliance with the requirements of federal, state, and local employment and sick leave laws and ordinances, including special duties that may be triggered only during public health emergencies.
Can employers ask employees suspected of having or being exposed to the coronavirus to stay home?
Employers are under a general obligation to protect their employees from known hazards. In certain circumstances, this may include the coronavirus. However, employers must take care to establish policies that are nondiscriminatory and are not applied selectively or arbitrarily. Employers should not act on mere suspicion when asking an employee to stay home but should be able to articulate an objective basis for the suspicion (and document it) before asking an employee to stay home.
As the CDC and WHO have often reiterated, the best way to prevent the spread of the coronavirus is to quarantine infected individuals to prevent the spread of the virus and contact with the uninfected. In the workplace, this means employers should actively encourage sick employees to stay home as soon as they suspect being exposed to the virus, even before they begin displaying symptoms. Employers would be wise to also remind sick employees of any rights that they may have to paid time off when sick or caring for sick family members. If an employee is displaying symptoms of an acute respiratory illness such as fever, cough, or shortness of breath, employers can ask the employee not to return to work until he or she has been without a fever for no less than 24 hours.
Employers should also consider halting non-essential work-related travel, particularly to countries known to be coronavirus hotspots such as China, Italy, Japan, or South Korea. If an employee has recently returned from such a country, an employer should consider asking the employee to self-quarantine and work from home for up to 14 days, which is the virus’s estimated incubation and transmission period.
Are Employers Required to Provide Paid Sick Leave to Workers?
For Chicago employers, applicable paid sick time laws may require providing paid sick time to employees and allowing them to use the paid leave for certain absences caused by public health emergencies, even if the employee or members of his or her family are not sick. Failing to comply with applicable sick time laws could have costly consequences for employers.
Below are summaries of the applicable sick leave laws that employers in Chicago and the Chicagoland area must be aware of:
Chicago Paid Sick Time Ordinance
Effective July 1, 2017, the City of Chicago enacted an ordinance requiring employers to provide employees with paid sick leave known as The City of Chicago Minimum Wage and Paid Sick Leave Ordinance. The ordinance applies to any employer that maintains a business facility within the City of Chicago or is required to obtain a business license to operate in the City of Chicago. The ordinance covers any employee who works at least 80 hours in a 120-day period and works at least part of the time within Chicago’s city limits. This includes domestic employees, day laborers, tipped workers, and home health care workers.
Under the ordinance, employees must accrue one hour of sick leave for every 40 hours worked, up to 40 hours in a 12-month period. Employers with paid time off policies that meet or exceed the paid sick leave requirements are not required to provide additional paid sick leave. Other aspects of the ordinance employers should be aware of include:
- Paid sick leave begins to accrue on the 1st calendar day after the start of employment.
- Hourly employees earn one hour of paid sick leave in full hour increments for every 40 hours worked.
- Salaried employees exempt from overtime requirements accrue one hour of paid sick leave for each week of employment.
- The 40 hours of paid sick time per 12-month period is only a statutory minimum and employers are free to set a higher limit.
- At the end of a 12-month accrual period, employees must be allowed to carry over up to half of unused paid sick leave (a maximum of 20 hours) unless the employer sets a higher limit.
- Employees may also use paid sick time if their workplace is closed by order of a public official due to public health emergency, or they have a child who needs care because their school or place or care is closed due to a public health emergency.
Cook County Paid Sick Time Ordinance
Cook County has its own paid sick leave law known as the Cook County Earned Sick Leave Ordinance. While numerous Cook County municipalities opted out of the County’s paid sick leave law, the city of Chicago did not. Even if the employer is located in a municipality that has opted out, it may still be required to provide paid sick leave if it has a covered employee who works in a Cook County municipality that has not opted out. In other words, it is the location of the employee that controls. This applies most often to employers whose employees work from home or travel throughout Cook County for work.
Chicago employers are generally subject to both the Chicago and Cook County paid sick leave ordinances. Because the two ordinances are so similar, the Cook County Commission on Human Rights has indicated employers that comply with Chicago’s ordinance will be deemed to be in compliance with Cook County’s ordinance.
Illinois and Federal Laws Concerning Sick Time and Public Health Emergencies
Employers throughout Illinois must also ensure that their plans comply with the Illinois Employee Sick Leave Act. While the Illinois law does not require employers to provide paid sick leave, it does obligate employers who offer personal sick leave benefits to employees to also cover absences for a family member’s illness, injury, or medical appointment. It is worth noting though that the Illinois law allows employers to limit the use of sick leave benefits to care for family members to an amount that is not less than the amount of personal sick leave the employee would accrue during six months at the employee’s current accrual rate.
In certain circumstances, employers may also be required to provide time off for coronavirus-related absences under the Family and Medical Leave Act (FMLA) or as a reasonable accommodation under local, federal and state anti-discrimination laws, like the Americans with Disabilities Act (ADA) and the Illinois Human Rights Act (IHRA). Employers are encouraged to speak with an experienced employment and wage law attorney to determine what leave is required by applicable law and whether that leave must be paid.
Super Lawyers named Illinois business and employment law trial attorney Peter Lubin a Super Lawyer and Illinois employment and business dispute attorney Patrick Austermuehle a Rising Star in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex employment, wage law violation, overtime, class action, collective action, non-compete agreement, discrimination and various other types of business and commercial litigation disputes. Our Waukegan and Lake Forest business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0333 or our toll-free number (833) 306-4933. You can also contact us online here.