New City Ordinance Prevents Retaliation Against Employees Who Obey COVID-19 Governmental Orders – Yet Another Reason to Ensure Your Workplace Is Following All COVID-19 Recommendations

By: Mark M. Trapp and Aaron R. Gelb

Recently, the Chicago City Council approved for immediate implementation a new ordinance prohibiting employers from taking adverse action against an employee obeying orders related to COVID-19 issued by the Mayor of Chicago, Governor of Illinois or Chicago Department of Public Health. The ordinance also encompasses employees staying at home to minimize transmission or while experiencing symptoms of the virus.Picture1

The ordinance applies to “Covered Employees,” who perform at least two hours of work in a two-week period for an employer while physically present in the geographic boundaries of the City of Chicago.

In addition to employees complying with governmental orders, the ordinance prohibits adverse action by an employer against any “covered employee” who, in compliance with the directive of a treating healthcare provider, remains at home while experiencing COVID-19 symptoms or obeys an isolation or quarantine order. The ordinance also applies to an employee who is caring for an individual staying at home or obeying a quarantine order, in either instance whether or not the employee has any employer-provided leave or vacation time.

Importantly, the ordinance does not require employers to allow otherwise healthy employees to refuse to work in a capacity permitted by current governmental orders. But if an employer fails to provide a safe work environment with protections such as social distancing requirements, or to take appropriate actions based on current orders from proper governmental authorities, an employee who refuses to work as a result of such failures may be protected from adverse action under the ordinance. Because of this, Chicago employers should take seriously and carefully comply with all applicable state and local orders.

Make no mistake, the ordinance has teeth. For example, actions by employers in violation of the ordinance are considered retaliation, allowing the Chicago Department of Business Affairs and Consumer Protection to “take action against the Employer to cure the violation” and to “institute an action in administrative hearings or a court of law against the Employer.”

In addition, another section of the ordinance grants employees affected by an employer’s adverse decision a private right of action for up to three times the full amount of wages they otherwise would have been owed, plus any actual damages together with costs and reasonable attorney’s fees. If terminated, demoted or transferred, the covered employee may also be entitled to the reinstatement to his former position or to an equivalent position.

Although the ordinance is very protective of employees, one provision sets forth a safe harbor for employers: namely, those who act in reliance upon a reasonable interpretation of an order and, upon learning of a violation, cure or rectify their action within 30 days will have an affirmative defense under the ordinance.

To minimize the risk of running afoul of this new ordinance, Chicago employers should ensure they are complying with all COVID-19 related orders of the Mayor, the Governor and the Department of Public Health, and be careful when considering employee discipline in any way related to COVID-19. Be careful out there!

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