On May 20, 2020, Chicago passed the “COVID-19 Anti-Retaliation Ordinance,” making it illegal for employers with employees in the City of Chicago to retaliate against employees who stay home: to follow public health orders related to COVID-19, to quarantine because of COVID-19 symptoms, or to care for an individual ill with COVID-19. Enacted as an amendment to Chicago’s Minimum Wage and Paid Sick Leave Ordinance, the Anti-Retaliation Ordinance prohibits employers from terminating, demoting, or taking other adverse action against employees who are unable to work for reasons related to COVID-19.
What do I need to know?
Under the Ordinance, an employer cannot terminate, demote, or take any other adverse action against an employee for obeying an order issued by Mayor Lightfoot, Governor Pritzker, or the Chicago Department of Public Health (or, in the case of subsections (2) through (4) below, a treating healthcare provider) requiring the employee to:
- Stay at home to minimize the transmission of COVID-19;
- Remain at home while experiencing COVID-19 symptoms or while being sick with COVID-19;
- Obey a quarantine order issued to the employee (to keep an employee who has come into contact with an infected person separate from others);
- Obey an isolation order issued to the employee (to separate an employee with COVID-19 from others); or
- Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.
In addition, an employer cannot take adverse action against an employee for caring for an individual subject to subsections (1) through (3) above.
The Ordinance became effective on May 20, 2020, and will expire (unless City Council intervenes) when the Commissioner of Public Health makes a written determination “that the threat to public health posed by COVID-19 has diminished to the point that [the] ordinance can safely be repealed.”
How can I tell if the Ordinance applies to me as an employer?
The Ordinance applies to any employer who employs at least one “covered employee” (see below), and
- Maintains a business facility within the geographic boundaries of the City of Chicago, and/or
- Is subject to one or more of Chicago’s business licensing requirements (under Title 4 of the Municipal Code).
What employees are covered by the Ordinance?
The Ordinance applies to “covered employees.” Subject to certain exclusions, a covered employee is one who works at least 2 hours in any two-week period for an employer while physically present within the geographic boundaries of the City of Chicago. Time spent traveling in the City that is compensated time (including deliveries, sales calls, and travel related to other business activity taking place within the City) constitutes “work” while the employee is physically present within the City, but uncompensated commuting time does not. The Ordinance does not apply to government employees, except those working for the City and its sister agencies.
If my healthy employees don’t want to come to work just because they are nervous about COVID-19 in the workplace, does the Ordinance apply?
It depends. Are you following all applicable governmental health and safety orders (with regard to social distancing, personal protective equipment, capacity requirements, etc.)? If so, otherwise healthy employees won’t be able to rely on the Ordinance for protection if they don’t return to the workplace. However, if you are not following governmental orders, the Ordinance could protect an employee who refuses to work from retaliation. Employers should continue to comply with all applicable state and local orders and take employee concerns about workplace safety seriously.
Are there fines or penalties for violating the Ordinance?
Yes. The Commissioner of Health can take action to cure the violation, including instituting an action in an administrative hearing or a court of law against the employer. In addition, the Department of Business Affairs and Consumer Protection is responsible for enforcing the Ordinance, and can fine the employer between $500 and $1,000 per offense. Fines can quickly add up for employers, since each day a violation continues constitutes a separate and distinct offense.
Can my employees sue me if I violate the Ordinance?
Yes. Employees have a private right of action. Employees can seek an order requiring the employer to reinstate them, either to the same position held before the retaliatory action or to an equivalent position. Employees can also recover treble the full amount of wages they would have earned if the retaliatory action had not taken place, as well as any other actual damages directly caused by the retaliatory action. Finally, employees can recover costs and reasonable attorney’s fees.
I didn’t realize I violated the Ordinance. What’s my best defense?
Employers have an affirmative defense to a violation if the employer relies on a reasonable interpretation of the applicable order and, upon learning of the violation, cures the violation within 30 days.
Take-away for employers
The Ordinance leaves no room for employers to ignore public health or treating healthcare provider orders related to COVID-19, or to require employees to come to the workplace if they are caring for an individual sick from COVID-19. However, employers who make reasonable attempts to follow the rules-and who quickly rectify any mistakes-should escape liability. In addition to compliance with health and safety orders, this Ordinance should remain top-of-mind for Chicago employers now and as they welcome employees back to the workplace. For assistance navigating these or other employment issues, contact a Baker McKenzie employment attorney.