Illinois' "Stay at Home" Order: A Checklist for Operating During COVID-19 [4/30/20]
Wednesday, April 29, 2020
By Peter A. Steinmeyer, Susan Gross Sholinsky, Brian E. Spang, Amy Bharj, Kathleen A. Barrett, Kellie Y. Chen & Michelle G. Marks
The Illinois "Stay at Home" Order took effect at 5:00 p.m. on March 21, 2020, which currently extends through May 30th. (full text here). This post will briefly summarize the Order's application to Illinois businesses, and then provide a one-stop-shop index pointing you to Epstein Becker & Green, P.C. ("EBG") and governmental resources to help you comply with existing and COVID-19-specific federal, state, and local regulations.
What Does "Stay at Home" Mean for My Business?
The Order requires "all individuals currently living within the State of Illinois" to "stay at home or at their place of residence" — subject to three significant exceptions. It similarly directs that "All businesses and operations in the State . . . are required to cease all activities within the state" — but again, subject to three significant exceptions.
First, the Order clarifies that all businesses may "continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e., working from home)." Accordingly, businesses whose employees can work from home may continue full operations, albeit electronically.
Second, "Essential Businesses and Operations are encouraged to remain open." The list of Essential Businesses and Operations is broad, covering 23 separate categories ranging from the obvious ("Healthcare and Public Health Operations" and "gas stations") to the less obvious ("dry cleaners" and "real estate appraisal and title services"). See here for the full list.
Third, businesses may remain open to conduct "Minimum Basic Operations," defined as the minimum necessary activities to maintain the business (e.g., maintain inventory value, process payroll, ensure security, and the like). See here for full details.
Generally speaking, then, many Illinois businesses are exceptions to the Stay at Home Order, all businesses may remain open for critical "Minimum Basic Operations," and all businesses may operate via telecommuting.
Doing Business in Illinois: Employment Regulation Index for the COVID-19 Era
Below is a list of issues and associated links to resources that will help guide you through these challenging times.
Illinois Expense Reimbursement Law and Requirements
Pursuant to an amendment to the Illinois Wage Payment and Collection Act that became effective on January 1, 2019, Illinois employers are required to reimburse employees for all "necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer." If you have required your employees to work from home, you may be subject to reimburse employees for the "necessary expenses" they incur. "Necessary expenditures" include any reasonable expenses or losses that the employee incurs that primarily benefit the employer and are a result of the employee discharging the duties of his or her position (e.g., required travel to an off-premises work site or required usage of a personal data plan, but not an ordinary commuting expense). See here for more detailed guidance on Illinois expense reimbursement requirements.
Illinois Changes to Unemployment Benefits
Illinois has suspended the one-week waiting period for unemployment insurance claims, and has expanded eligibility to include employees temporarily laid off for extended periods due to COVID-19. NOTE: paying out accrued, unused vacation or other paid leave during the period of temporary unemployment may affect the amount of unemployment insurance employees ultimately receive. See the IDES Covid-19 and Unemployment Benefits FAQs and here for more information.
Federal Family and Medical Leave Act Amendments
Congress' first legislative response to COVID-19 provides a paid leave benefit, grants emergency paid sick leave benefits, and enhances unemployment benefits. See here for more information.
Cook County, the City of Chicago, and several other municipalities mandate sick leave benefits. See here for information.
Relaxation of I-9 In-Person Requirement and Temperature-Taking Prohibitions
For businesses that continue to hire, the DOJ has relaxed the requirement that 1-9 employment documents be provided in-person: See here.
The Americans with Disabilities Act generally prohibits "medical examinations," such as taking an employee's temperature. Nevertheless, the EEOC is deferring to CDC guidance permitting the taking of temperatures, and permitting other similar recommended "medical examinations." Pertinent EEOC information can be found here and here.
The Stay at Home Order largely permits union work forces to keep working. See here for union-specific considerations.
Wage and Hour Considerations
The COVID-19 era workplace raises numerous wage and hour, FMLA, and OSHA issues that employers may not normally face. See here for some of those issues and compliance strategies, and here for telecommuting-specific considerations and guidance.
Employer COVID-19 Reporting Obligations and Governmental Guidance and Resources
We are not currently aware of any requirements that impose an obligation on private employers to report employee suspected or confirmed cases of COVID-19 to any city, local, or state governmental agencies in Illinois. Should you choose to report, here are some contact numbers:
- Illinois Department of Public Health: The Illinois Department of Public Health has a statewide COVID-19 hotline and website to answer any questions from the public or to report a suspected case: call 1-800-889-3931 or visit http://www.dph.illinois.gov/
Employers, however, may have an OSHA obligation to record work-related confirmed cases of COVID-19 on their OSHA Form 300 log, Form 300A, and Form 301. The OSHA website has provided guidance on when COVID-19 reporting is required which can be found. In addition, Illinois private employers must report work-related occurrences here of COVID-19 that result in: (1) an employee fatality; (2) in-patient hospitalization of one or more employee; (3) amputation; or (4) a loss of an eye. Certain lime limits regarding the reporting apply.