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COVID-19 – What Illinois Employers Need to Know

By Karuna S. Brunk

We previously reported on how employees can handle employment loss due to COVID-19 and the current health crisis.  This article focuses on what Illinois employers need to know.

1. Executive Order in Response to COVID-19: Effective March 21, 2020, Illinois Governor J.B. Pritzker issued an Executive Order in Response to COVID-19 directing all individuals to stay at home or at their residences, ordering all non-essential businesses and operations to cease, and prohibiting the gathering of more than ten people.  Certain “essential” businesses are exempt from the order and are allowed to remain open – healthcare and public health operations, human services operations, essential governmental functions, and businesses in essential infrastructure.  The order currently extends through April 30, 2020.

2. Families First Coronavirus Response Act: Effective April 2, 2020, and sunsetting on December 31, 2020, the federal government requires the following of businesses:

A. Paid Sick Leave: All private sector employers with fewer than 500 employees must pay 2 weeks of paid sick leave (up to 80 hours for full-time employees or the average hours in a 2-week period for part-time employees) to employees (exempt and non-exempt) who are unable to work on site or remotely for certain reasons:

1. Eligibility:

i. If the employee is subject to a government quarantine or isolation order related to COVID-19;

ii. If the employee has been advised by a health provider to self-quarantine due to COVID-19;

iii. If the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

iv. If the employee is caring for another person who is subject to a quarantine order or needs to self-quarantine;

v. If the employee is caring for children who are subject to school closures; or

vi. A “catch all” allowing the Department of Health and Human Services to consult with other federal agencies to develop additional conditions for paid sick leave.

2. Pay Caps: If an employee is sick himself, the amount of paid sick leave is paid at his regular hourly rate but capped at $511 per day and $5,110 in total.  If the employee is taking care of a sick family member or a child who is unable to attend school, then he is to be paid 2/3rds of his regular hourly rate of pay but capped at $200 per day and $2,000 in total.

B. Expansion of FMLA Leave: The new Families First Coronavirus Response Act broadens the protections under the Family and Medical Leave Act.  All private sector employers with fewer than 500 employees and all government employers must provide any employee who has been employed for 30 calendar days or more up to 12 weeks of paid Family and Medical Leave in order to care for a child (under 18 years of age) when schools are closed or daycare is unavailable due to the COVID-19 emergency and because the employee is unable to work or telework.

1. Pay:  Theoretically, the first 10 days of FMLA leave may be unpaid, but under the circumstances described above, this period might be covered by the paid sick leave component of the federal law.  After 10 days, employees are entitled to 2/3rds their regular rate of pay and capped at $200 per day and $10,000 in the aggregate.

C. Exemptions: There may be limited exemptions for “small” employers (employers with fewer than 50 employees) based on demonstrating for the U.S. Department of Labor that providing paid sick leave will jeopardize the viability of the business. There is also a limited exemption for healthcare workers and emergency responders.

D. Other Paid Leave: Employers may not require employees to use “other paid leave” prior to using the paid sick.

What to do now?

This is a dynamic situation.  Federal, state, and local governments responses vary by the hour.  We recommend that employers do the following:

  • Encourage remote work: Now is a very good time to encourage your employees, even your hourly employees, to work remotely.  The paid sick leave and FMLA components of the Families First Coronavirus Response Act apply when employees are unable to work.  As such, consider developing good supervision and management techniques that foster productive teleworking.  Be careful of “on-call” issues.
  • Temporary Paid Leave Policy: Consult with a qualified labor and employment attorney as you implement a paid leave program and allow your employees to take time away from work to deal with COVID-19 issues.  The Families First Coronavirus Response Act is ambiguous and convoluted and may require a significant amount of interpretation and analysis.
  • Notice: Look for a model notice from the US Department of Labor regarding the Families First Coronavirus Response Act.
  • Do not forget about the other employment law issues: COVID-19 is currently the most urgent issue for employers, as it should be.  But discrimination and wage and hour laws continue to apply, and, rest assured, plaintiffs’ attorneys will not hesitate to take legal action against employers if they see violations in these regards.

We are carefully monitoring the COVID-19 situation and the legal issues surrounding it and will regularly report on changes to the law, including the rules and regulations that will be promulgated by the federal government shortly.

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Di Monte & Lizak, LLC,

216 Higgins Road,

Park Ridge, IL 60068