As legal challenges continue to mount across the country against federal, state, and local mandates requiring certain employees and high education students to receive a COVID-19 vaccine and/or comply with testing requirements, notable legal cases have popped up that many local government employers should know. Below are two cases we recommend watching closely.
Justice Sotomayor Denies Emergency Injunction Application
The United States Supreme Court weighed in (or, in this case, refused to weigh in) on New York City Public School's vaccination mandate for teachers and staff. On Friday, October 1, 2021, Justice Sonya Sotomayor, assigned to handle emergency motions from the Second Circuit Court of Appeals, denied an emergency application for injunctive relief (a legal remedy used to restrain or prohibit a party from conducting an act) by a group of public-school teachers challenging the school district's mandate.
According to the New York City Department of Education's (DOE) website, staff "who do not have an approved exemption or leave, will be removed from payroll beginning Monday, October 4 if they are not vaccinated by end of day Friday, October 1."
This is now the second time that the Supreme Court has refused to grant an emergency application for relief challenging vaccination requirements. The first instance came in August when Justice Amy Comey Barrett denied a similar application arising out of the Seventh Circuit Court of Appeals where a group of Indiana University students challenged their institution's COVID-19 vaccination mandate.
We will keep readers of any further developments in federal court of any challenges to COVID-19 mandatory vaccinations.
Individual EMS Personnel File Suit over Vaccination Mandate in Illinois
In late September, a group of emergency services (EMS) personnel filed a lawsuit in federal court challenging Illinois Governor J.B. Pritzker's COVID-19 vaccination requirement for health care workers in Illinois. The plaintiffs are employed by the Naperville Fire Department. Plaintiffs in Halgren v. City of Naperville argue that the Governor's EO violates the due process and equal protection rights of the named plaintiffs.
The EMS personnel allege the mandate is not narrowly tailored to serve a compelling governmental interest. Here, the term "narrowly tailored" references a constitutional doctrine requiring specific laws and public policies to be precisely written when addressing particular issues and not overly broad hindering individual rights. Instead, the plaintiffs allege the order is a "punitive measure taken against those who assert their fundamental rights." The suit also contends that the Governor's EO "far exceeds the power of the governor granted to him by Illinois statute."
The suit cites Governor Pritzker's Executive Order 2021-22 (COVID-19 Executive Order NO. 88), which states:
"[a]ll Health Care Workers must have, at a minimum, the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 19, 2021, and the second dose of a two-dose COVID-19 vaccine series within 30 days following administration of their first dose in a two-dose vaccination series."
The Governor's EO defines Health Care Worker as any worker that: "is employed by, volunteers for, or is contracted to provide services for a Health Care Facility, or is employed by an entity that is contracted to provide services to a Health Care Facility" and is "in close contact (fewer than 6 feet) with other persons in the facility for more than 15 minutes at least once a week on a regular basis." Health care facilities include emergency medical services and IDPH licensed emergency medical service vehicles.
Although this case is still in its infancy, challenges to COVID-19 vaccination mandates and testing requirements appear to move relatively quickly through the courts. No doubt, we will have more updates on this case soon, so check back for more information.
]]>Yesterday, President Joe Biden announced that employees working for private sector businesses with 100 or more employees must receive the COVID-19 vaccine. Under the "Path out of The Pandemic: President Biden's COVD-19 Action Plan", the Occupational Safety and Health Administration will issue an Emergency Temporary Standard (ETS) mandating covered employees to either receive a vaccination or submit to weekly testing. Under the new ETS, unvaccinated employees must produce a negative COVID-19 test at least once a week before returning to work.
President Biden's new directive also calls for the Center for Medicare & Medicaid Services (CMS) to require employees of health care facilities that receive Medicare and Medicaid reimbursement to receive the vaccine. In addition, the federal government will also require employees of federal contractors to be fully vaccinated or comply with weekly testing and other mitigation measures.
Approximately 100 million employees will likely be affected by this action plan, making it one of the largest public health initiatives in our nation's history. This comes as many states are still grappling with increasing COVID-19 infections among unvaccinated members of the public.
So far, the plan does not include requirements for state, county, or local governments. Nonetheless, local governments should continue their awareness of ever-changing rules and regulations around vaccinations, masking, and other COVID-19 mitigation measures. Currently, the State of Illinois requires all persons over the age of two who can medically tolerate a face covering to wear one in public places, including employees unless their workplace allows for six feet of social distancing.
]]>Masking Requirements
Starting on Monday, August 30, all Illinois residents over two years old must wear a mask indoors. This requirement does not extend the wearing of masks outdoors, but it is advised that public members in large outdoor crowds wear a mask. This announcement applies to all members of the public—regardless of vaccination status.
Employers can find guidance on face coverings in the workplace by visiting the IDPH website here.
COVID-19 Vaccination Requirements
As the Delta variant continues to rise throughout the state, certain employees and other members of the public in “high-risk settings”, will be required to obtain a vaccination. As of now, the press release states that private and public healthcare workers, workers in long-term care facilities, teachers and staff in pre-k-12 schools, and higher education personnel and students must obtain a vaccination. Applicable workers, personnel, and students must receive their first dose of a two-dose vaccination or one dose of a single-dose vaccination no later than September 5, 2021.
Further, any applicable worker or student that does not obtain a vaccine due to a medical or religious reason must follow a routine testing schedule to detect outbreaks of COVID-19. Those workers and students who do not provide vaccination proof may not enter healthcare or educational facilities unless they follow a required testing protocol.
Non-healthcare or educational employers looking to implement a vaccination requirement should contact an Ancel Glink, P.C. attorney for specific guidance.
]]>One such issue was decided last week by the Second District of the Illinois Appellate Court. In Hobby Lobby Stores, Inc. v. Sommerville and the Human Rights Commission, the court addressed whether an employer violated the Act by denying a transgender woman access to the women’s bathroom at work. In a unanimous opinion from the three-judge panel, the court held that Hobby Lobby discriminated against its employee, Meggan Sommerville (“Sommerville”) when it denied her access to the bathroom solely because she is transgender. By analyzing the statutory language, the court held that:
“Hobby Lobby’s conduct...falls squarely within the definition of unlawful discrimination under the Act, as it treats Sommerville differently from all other women who work or shop at its store, solely on the basis that her gender is not ‘traditionally associated with’ her ‘designated sex at birth.’”
The Court’s approach was not unlike that taken by the majority of the Supreme Court in Bostock. By strictly interpreting the statutory language, the Court found that the definition of sex, “the status of being male or female,” demands the conclusion that sex is a mutable, or changeable, state of being under the Act. The definition does not reference genitalia, genetic information, or information on a person’s birth certificate but rather is quite broad and should be read to provide liberal protection consistent with the Act’s purpose.
Furthermore, the Court found Hobby Lobby’s actions unreasonable, given the length and expense of Sommerville’s transition and her efforts to become legally recognized as a woman (including changing her driver’s license, Social Security card, and legal name). These efforts extended to the workplace, too—Hobby Lobby had previously changed Sommerville’s personnel records to reflect her transition and acknowledge her as a woman.
The Court also upheld the Human Rights Commission’s award for injunctive relief and a $220,000 compensatory award for emotional damages, a notably high award. The Court noted that Sommerville experienced the discriminatory denial of bathroom access every day for over five years, which caused her significant distress, fear for her safety, and physical illness resulting from her withholding food and liquid to avoid using the bathroom.
In late May, legislators took the first step in the amendment process: both chambers passed Senate Joint Resolution Constitutional Amendment 11 (“SLCRA 11”), which will appear on the ballot during the November 2022 election. If adopted by voters, this provision would amend the Illinois Bill of Rights to include a “Workers’ Rights Section” establishing the fundamental right of workers to organize and bargain collectively for their interests regarding the wages, hours, and conditions of their work.
It is no secret that Illinois has a long history of collective bargaining and worker representation. Indeed, the percentage of unionized workers in Illinois has remained consistently high relative to the rest of the United States. However, this amendment presents strong protections for unions by effectively preventing legislators from passing right-to-work laws for private-sector employees in Illinois. Right-to-work laws entitle employees to work in unionized workplaces without joining a union or paying union dues, as is the traditional rule and practice. In 2018, the Supreme Court held that collecting “fair share” fees from non-unionized public employees is an unconstitutional restriction of employees’ free speech rights. While many union powers emerged unhindered after that decision, legislators have shown support for labor unions throughout the State’s history.
Employers and employees should keep an eye on the status of the Resolution, as the November 2022 election is a little over a year away. Leading up to the election, the Secretary of State will release educational information to voters on the proposed amendment which will highlight the arguments in favor of and opposing its adoption. Be sure to check back in with The Workplace Report for more information on the status of the Resolution.
]]>With another legislative session in the books, the Illinois General Assembly (IGA) sent a litany of labor and employment-related bills to the Governor's desk. Below is a synopsis of all new updates, including bills awaiting Governor Pritzker's signature or that he already signed:
Illinois Freedom to Work Act (IFWA)
The Illinois General Assembly made a series of notable changes to the IFWA in S.B. 0672 that employers should know regarding restrictive covenants (non-compete agreements) in employment contracts:
Illinois Wage Payment and Collection Act
On July 7, 2021, Governor Pritzker signed H.B. 0118, which amends the Act by increasing the damages available to an employee for a wage claim of underpaid wages to five percent, up from two percent, for each month wages are not paid. This amendment went into effect immediately after signing.
Personnel Records Review Act
The Illinois General Assembly passed S.B. 2486, which amends the Illinois Personnel Record Review Act to change an aggrieved employee's time to file an action alleging a violation from seven years down to three.
Illinois Human Rights Act (IHRA)
Under H.B. 0121, the Illinois General Assembly amended the IHRA by passing protections for immigrants authorized to work in the United States. Specifically, the amendment includes a person's work authorization status to be protected against unlawful harassment or discrimination.
Victim's Economic Safety and Security Act (VESSA)
H.B. 3582 amends VESSA to include that victims and family members of victims of violent crimes are subject to the provisions and protections of the Act regarding unpaid leave and prohibited discriminatory acts. Previously, the Act only protected victims and family members of domestic violence, sexual violence, and gender violence victims. Further, victims of violent crimes shall not be barred from collecting voluntary leave benefits under the amendment.
]]>According to both agencies, patients experiencing “long COVID” may be covered under the ADA or Rehab Act based on an actual disability arising from their exposure to the virus. Long COVID cases have been observed in people whose symptoms persist beyond their infection period, ranging from lingering fatigue to severe organ damage. An “actual disability” under the law must substantially limit one or more of the “major life activities” of a person, which might include walking, standing, lifting, speaking, breathing, concentrating, and working (to name several activities which are often altered for individuals with COVID-19 or its lasting effects.) Because of the extraordinary impact that the virus has had on different people, based on pre-existing medical conditions, vaccination status, fitness, life habits, and other factors, an individual assessment is always necessary to determine whether someone qualifies for coverage under the ADA or Rehab Act.
If an individual does qualify as a person with a disability under the ADA or Rehab Act, they are entitled to full and equal protection when interacting with businesses, governments, and employers. This protection extends to the right to be free from discriminatory employment actions such as unlawful discharge, demotion, or harassment and the affirmative right to reasonable accommodations in the workplace.
As employees begin to report long COVID and request modifications to their work conditions, employers need to consider the costs and benefits of providing requested accommodations in the workplace. Employers would be well-advised to review their equal employment opportunity policies and discuss any concerns with their attorneys to avoid unnecessary litigation or any harmful reputational costs associated with reluctance in following this guidance.
]]>Although the CDC continues to emphasize that the best protection against variants are vaccines, healthcare associations are calling on employers to reinstate their previous guidance of masks being worn in the workplace regardless of vaccination status to avoid additional strains on healthcare resources, an increase in hospitalizations, and potentially more deaths.
]]>On July 9, the Seventh Circuit Court of Appeals issued its decision in Demkovich v. St. Andrew the Apostle Parish, Calumet City, and The Archdiocese of Chicago, an employment discrimination case that arose when a Catholic church terminated a music director following several years of alleged harassment by the parish’s pastor. The music director, a gay man who struggles with diabetes and metabolic syndrome, claimed that he was subjected to frequent insults and hostility from the pastor and was ultimately terminated after marrying his partner.
In his first complaint, the music director claimed that the church and Archdiocese unlawfully discharged him under Title VII and the Americans with Disabilities Act (ADA). The district court dismissed the case because the defendants successfully raised the ministerial exception, which shields religious organizations from government interference with their ability to select and control their ministers and protects them from certain employment lawsuits. The music director amended his complaint to describe a hostile work environment--rather than unlawful termination--based on his sex, sexual orientation, marital status, and disability. The district court dismissed all but the disability claim, holding that the parish’s religious justifications for the pastor’s alleged discriminatory comments, based on the music director’s sexuality, warranted protecting the church from judicial interference.
On appeal, the Seventh Circuit reversed the district court’s finding that the disability-based claim could survive the ministerial exception. The majority of the Court held that allowing the music director’s claim to proceed “would not only undercut a religious organization’s constitutionally protected relationship with its ministers, but also cause civil intrusion into, and excessive entanglement with, the religious sphere.” This case is the first in which the Seventh Circuit has expanded the ministerial exception to cases involving hostile work environment and harassment claims. The Court found that the protections of the First Amendment must prevail over the prohibition of discrimination found in Title VII and the ADA.
In the dissent, three judges opined that the majority had failed to recognize the nuances of the music director’s claims and had too quickly concluded that hostile work environment claims are categorically barred when brought in the context of ministerial employment. The dissent advocated for the approach taken by the Ninth Circuit, which includes a careful balancing test to discern which cases are fit for applying the ministerial exception and which may proceed through litigation. The split between Circuit Courts across the country on the application of the ministerial exception may necessitate clarification from the Supreme Court on this issue in coming terms.
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On July 1, the U.S. Department of Labor (DOL) announced its renewed dedication to promoting Short-Time Compensation (STC) programs across the country and awarded grants to several states to assist with their economic recovery in the wake of the COVID-19 crisis. The DOL announced that the Illinois Department of Employment Security (IDES) would receive just over $4 million to “support the state’s business community as it continues its economic recovery” through STC programs.
STC, also known as work-sharing, allows employers to cut employees’ work hours without laying them off by providing partial unemployment benefits to employees with reduced hours. While several other states have had work-sharing programs in place for some time, this grant from the DOL will help Illinois implement an STC scheme for the first time. Illinois passed legislation in late 2014 authorizing IDES to implement an STC program, and this new grant provides further incentive to continue that process.
Once IDES develops the requisite rules and procedures to support an STC program in Illinois, the onus will be on employers, not employees, to seek opportunities to participate in the program. Guidance from the DOL and the 2014 Illinois statute requires employers to submit a proposed STC plan to IDES to be considered for the program. Notably, the components of the application shall include, among other requirements, the following details:
Work sharing may provide some economic relief to Illinois businesses without necessitating harmful layoffs or uncompensated work reductions. The Workplace Report will provide necessary updates as IDES considers and approves procedural and regulatory provisions related to STC in response to the new grant funding.
]]>In the debate over whether college athletes can seek payment for their participation in sports, Illinois, one of several states across the country, has passed legislation outlining how and when student-athletes can receive compensation. On Tuesday, July 29, Governor Pritzker signed the Student-Athlete Endorsement Rights Act (Act). The Act, which has already gone into effect, provides that a student-athlete enrolled at a postsecondary educational institution, including private and public colleges, universities, and community colleges, may be compensated for using their name, image, likeness, or voice, subject to certain restrictions within the Act and any reasonable policies adopted by their schools.
The Act defines the rights and obligations for postsecondary schools with athletics programs. Schools covered by the Act are barred from creating rules or entering into contracts with student-athletes, which prevent them from being compensated in a manner consistent with the law’s provisions. However, schools may impose reasonable limitations on the amount of time athletes participate in promotional activities and may enter an agreement with the student and any promotional entity to be compensated for any use of the school’s name, logo, or other marks, or bar their use altogether.
Permissible student-athlete activities are also carefully defined and clarified by the Act’s provisions. For example, student-athletes are not to be deemed employees, agents, or independent contractors of their schools or any athletics conference they participate in, which inhibits their ability to unionize or shift liability to their schools in the case of a legal dispute.
Student-athletes are prohibited from participating in publicity campaigns for tobacco products, e-cigarettes, alcohol, gambling, or other activities and products that are inconsistent with the values or mission of their school. The law contains several other provisions clarifying obligations and rights of student-athletes, postsecondary institutions, and athletics conferences, which together create a complex statutory scheme for this sort of compensation.
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Summertime has arrived, with its typical indicators: unbearable humidity, ice cream trucks, baseball, and—yes—droves of young students looking for part-time gigs. As students from middle schools and high schools around Illinois begin to look for summer employment, employers should revisit their policies on hiring student employees. Below, employers will find great tips on how to properly hire youth workers.
Review Work Permit Requirements
Aside from several exemptions for agricultural workers, small domestic tasks, and several other special categories of employment, employers wishing to hire minors between the ages of 14 and 16 must obtain and file an employment certificate under Illinois’s Child Labor Law (“the Act”). These permits allow minors to work during summer breaks and outside of school hours. A permit must be signed by either a municipal or county school superintendent or a delegated authority before being sent to the minor’s employer, the Department of Labor, and the minor’s parent or legal guardian. Work permits for minors are valid for one year and may be revoked by request from the child’s parent, guardian, or principal based on the child’s welfare and development. For a student to receive a work permit under the Act, they must submit the following materials to the superintendent or the delegated authority:
Assess Hiring Needs
Employers should be aware of their staffing needs before turning to students to fill vacant positions. Employers cannot hire students under the age of 16 for certain positions based on work settings and tasks deemed hazardous under the Act and by relevant provisions of the Illinois Administrative Code. There are 26 such prohibitions listed in the statute, including employment in connection with mills, factories, workshops, brickyards, beauty parlors, bakeries, theaters, concert halls, hotels, laundromats, airfields, and carwashes, among others. While the Act prohibits these broad categories of work, the Illinois Administrative Code provides greater clarity and guidance as to what kind of work is acceptable or prohibited; for example, a student between the ages of 14 and 16 may work at a traditional movie theater, but may not work for an outdoor or drive-in theater.
Hour Requirements under the Act
The Act establishes when minors can work. No minor under 16 may start work before 7:00 AM, and during the summer, they may not work after 9:00 PM. While school is out of session, minors cannot work more than 8 hours per day or more than 48 hours per week and cannot work more than 6 days per week.
Wage Considerations
The State of Illinois has imposed a legislative scheme to gradually increase the minimum wage for workers, both adult, and minor. Employers must stay apprised of the minimum wage requirements as outlined in the Minimum Wage Law, as the rates have been scheduled to increase on January 1 of every year through 2024. For this calendar year, January 1–December 31, 2021, the minimum wage for workers under the age of 18 is $8.50 per hour, barring minors who have worked more than 650 hours for their employer in a year from the time they were hired. If a minor under 18 has worked more than 650 hours in the year from the time they were hired, an employer is obligated to pay them the same minimum hourly rate prescribed for adult workers, which is $11.00 for the 2021 calendar year.
While some employers might otherwise look to the Cook County Minimum Wage Ordinance to adjust their pay rates, this law does not apply to employees under the age of 18. Thus, the Illinois minimum wage is the relevant pay to consider for student workers. In addition, under the Chicago Minimum Wage Ordinance, employees who work at least 2 hours within the geographic boundaries of Chicago within two weeks are covered under the ordinance, so employers outside the City must also be aware of the requirements set forth if their employees spend compensated time in Chicago.
While the laws and regulations about young employees can be challenging to navigate, it is well worth employers’ time to review your internal procedures and ensure compliance with state and local law. Have a safe and productive summer!
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Usually, the U.S. Supreme Court makes headlines when it releases critical decisions on notable cases. However, on occasion, the high court makes headlines when they refuse to hear a case, which allows the lower court's opinion to stand. This occurred recently in a case about applying Title IX's equal protection provisions to school bathrooms for transgender students. You can read our post about the U.S. Department of Education's recent Notice of Interpretation, which applies Title IX's prohibition on discrimination to include a student's sexual orientation and gender identity here.
In Grimm v. Gloucester County School Board, the 4th Circuit determined that a local county school board violated Title IX when it barred a transgender high school student from using the bathroom aligned with that student's gender identity. In 2014, a Gloucester County, Virginia high school allowed Gavin Grimm, a transgender student, to use the boy's bathroom. However, parents complained about the policy and lobbied the school to require students to use the applicable bathroom based on their gender assigned at birth.
Grimm filed a lawsuit in federal court arguing the policy violated Title IX, which prohibits discrimination in education on the basis of sex. The 4th Circuit Court of Appeals concluded that the district did violate Grimm's constitutional rights. In 2017, the U.S. Supreme Court granted the school district’s request for a writ of certiorari (a motion by a party in a lawsuit requesting a high court to review a decision by an inferior court), but kicked the case back to the 4th Circuit for further review.
In February 2021, after the 4th Circuit affirmed their decision in Grimm, the school district appealed again to the U.S. Supreme Court but was denied. When the Supreme Court denies the appeal of a case from a federal circuit court of appeals, it results in the lower court's decision to stand. The 4th Circuit's decision in Grimm maintains the status quo—meaning other federal courts will cite Grimm when deciding similar issues.
Not only is the Grimm case one of the first to address individual protections based on gender identity, but the Court’s refusal to hear the appeal might signal a general position of the justices on the issue of transgender rights for all individuals, which is perhaps unexpected from a Court that is considered both conservative and comprised of many “strict constructionists.” While Illinois law provides protections based on gender identity, many states do not recognize such rights and the issue became somewhat dormant during the Trump era. We may see a greater focus on this topic again by courts and legislatures going forward.
You can read more about the case’s procedural history here.
On June 16, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR), which enforces Title IX of the Education Amendments of 1972, released an official notice of interpretation regarding the Supreme Court’s decision in Bostock v. Clayton County. The Court in Bostock held that employer’s prohibition against discriminating “on the basis of sex” applies to an employee’s sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. OCR’s notice extends protections afforded by Bostock to students falling under Title IX’s protection.
Courts and administrative agencies often rely on interpretations of Title VII on how to interpret provisions in Title IX because of similarities in both laws. In its letter, OCR indicates that the “Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock . . . properly guides the Department’s interpretation of discrimination ‘on the basis of sex’ under Title IX . . . .” OCR came to this conclusion based on several relevant factors, including the similarity between Title VII and Title IX; several federal courts’ recognition that Title IX’s prohibition on sex discrimination include discrimination based on sexual orientation and gender identity; and the Department of Justice’s written guidance applying the Bostock principles to Title IX.
When a complaint of discrimination involving a student’s gender or sexual identity occurs in an educational context that meets applicable standards, OCR will investigate each complaint and apply this new guidance.
Under U.S. Department of Education jurisdiction, complaints can include allegations of individual harassment; discriminatory discipline procedures; exclusion, denial, or subjection to sex stereotyping in academic or extracurricular programs and other activities; denial of benefits; or different treatment because of a student’s sexual orientation or gender identity. While each case of sex discrimination brought to the Department will be evaluated individually, this notice will guide any investigatory and adjudicatory actions undertaken by the agency’s staff.
This interpretation signals the renewed focus of federal agencies on transgender rights and may be a bellwether of future decisions securing rights of individuals, including employees, based on gender identity.
In late May 2021, both houses of the Illinois General Assembly passed SJRCA0011, a ballot measure that, if passed by voters, would amend the Illinois Constitution, creating a constitutional right for Illinois workers to unionize.
The ballot measure would amend Section 25 of Article I of the Bill of Rights of the Illinois Constitution. The ballot measure states:
Employees shall have a fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and workplace safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.
The ballot measure will be on the ballot for the November 2022 Election. Voters will be given a simple “yes” or “no” choice on whether Illinois should adopt the amendment when casting their ballot. The Illinois Constitution requires amendments to be approved either by three-fifths (60%) of voters voting on the question or by a simple majority of voters
The Workplace Report will keep readers updated on any developments regarding this ballot measure.
]]>Last month, the 7th Circuit Court of Appeals affirmed a lower court’s decision in Vesey v. Envoy Air, Inc., which ruled against an airline agent claiming she was harassed based on her race and fired in retaliation for reporting the harassment. To support her claims, the plaintiff, Ms. Ciara Vesey, pointed to a series of workplace-related complaints. She told Envoy’s human resources department that her superiors, Ms. McMurray and Ms. White, committed favoritism and were biased against her. In addition, Vesey claimed after she reported that her supervisors, McMurray and White, harassed and retaliated against her. Vesey also alleged that another employee, Mr. Masengarb, directed racist remarks towards her.
Vesey also asserted in her appeal deposition evidence not considered by the lower court where White allegedly pressured another employee into filing complaints against Vesey. Envoy responded to Vesey’s complaints and found most of her accusations unfounded. However, they did fire Masengarb for his racist comments towards Vesey.
Vesey’s behavior during her employment raised concerns with the airline, which led to an internal investigation. Part of the lead-up to the inquiry included the uncontested fact that Vesey crashed a jet bridge into an airplane. The investigation also found that Vesey used her access as an agent to manipulate the travel voucher system. She booked flights, never intending to take them, then logged into the booking system minutes before takeoff to collect $500 travel vouchers in exchange for postponing her flight. Then she would cancel the original flight and keep the voucher. Based on its findings, the investigation recommended that Envoy terminate Vesey because of her fraudulent activities. Citing retaliation, Vesey disagreed with the investigation’s findings.
Agreeing with the lower court, the 7th Circuit found that Envoy properly terminated Vesey. The Court found her complaint of racial harassment unconvincing since Envoy promptly investigated and fired an employee of his racist remarks against Vesey. The Court was also unmoved by Vesey’s argument that she was fired in retaliation. On that claim, she relied on a “cat’s paw” theory that claimed her superiors, McMurray and White, used the internal Envoy investigators to discriminate against her. The term “cat’s paw” refers to an idiom in which someone is used by another person to achieve the user’s end. This theory failed because the Court found that even if Vesey’s superiors harbored some bias towards her, the investigation turned up legitimate reasons to fire Vesey unrelated to any racial animus White and McMurray had against her.
The investigators based their conclusions on Vesey’s travel history and activities while employed. The Court opined that Vesey offered no evidence that her termination resulted from anything other than her fraudulent use of travel benefits. This elaborate scheme against her employer was evidence of her dishonest conduct, irrespective of how other employees felt about her. The Court concluded that “[no] evidence offered by Vesey creates a genuine dispute that would allow a reasonable jury to conclude that Vesey was terminated for any reason other than her abuse of travel benefits.”
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Many local governments with public safety employees have faced the challenge of containing costs of benefits granted pursuant to the Public Safety Employee Benefits Act (PSEBA), entitling employees and their dependants to lifetime health insurance benefits at no charge when an employee suffers a disabling line of duty injury or fatality. Identifying a “basic insurance plan” that PSEBA beneficiaries will receive was a statutory right for employers under PSEBA and one way that employers contained these costs. Often this meant that beneficiaries were transferred from a premium benefit level to a more affordable plan when the employer offered more than one level of coverage.
The state legislature has changed that. HB 2568 entitles unionized PSEBA beneficiaries to receive the health insurance coverage identified in the applicable collective bargaining agreement and makes the available plans a mandatory subject of bargaining. This change means that the coverage level for PSEBA beneficiaries is no longer in the sole discretion of the employer and this issue becomes another topic in the mix at the bargaining table. Health insurance coverage for PSEBA recipients will be as much of a contested issue during negotiations as health insurance for active employees is. Additionally, employers will need to carefully bargain this language to allow for changes to PSEBA recipients when the employer changes benefits to other employees.
The legislation awaits the Governor’s signature. Stay tuned for updates.
]]>For the first time, a federal court has ruled on the legality of an employer mandate requiring employees to receive the COVID-19 vaccine. U.S. District Judge Lynn N. Hughes for the Southern District of Texas upheld Houston Methodist’s vaccine requirement for its existing employees and new hires.
In March 2021, Houston Methodist, a major hospital system located in Houston, Texas, implemented a vaccine requirement for their employees. The hospital system employs over 26,000 people, and of those, 178 were suspended without pay for failing to comply with such requirement. The Plaintiffs in this lawsuit included 117 of Houston Methodist’s employees who challenged the requirement, contending that the vaccines are experimental and dangerous, comparing such a requirement to the Nazi medical experiments on concentration camp prisoners during the Holocaust. Among the other claims made by the Plaintiffs here include requiring vaccination would force employees to break the law, the employees were being coerced by the requirement, and that employees would be forced to take unapproved medicine. Moreover, Plaintiffs claim that the policy would unlawfully force them to be human “guinea pigs.”
Judge Hughes rejected each of these claims, stating “[r]eceiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties.” Further, “[t]his is not coercion. [Houston] Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients and their families safe.” As for the claim stating the requirement would force employees to take unapproved medicine, Judge Hughes stated, “Federal law authorizes the Secretary of Health and Human Services to introduce into interstate commerce medical products intended for use in an emergency.” In his ruling, Judge Hughes stated that the Plaintiffs can freely choose to accept or refuse a vaccine, and if they choose to reject it, they will need to work somewhere else.
Houston Methodist stated that employee vaccinations are essential to keeping both patients and employees safe. Under this policy, Houston Methodist allowed employees to request exemptions based on a documented medical condition or a conflict with their sincerely held religious beliefs. Moreover, Houston Methodist also allowed deferrals for other reasons, including pregnancy.
The policy implemented by Houston Methodist aligned with the updated guidance provided by the U.S. Equal Employment Opportunity Commission that was issued in May 2021, indicating that employers could require their employees who are entering a workplace to be vaccinated. While it is unclear how many businesses have already adopted mandates similar to those by Houston Methodist, it is expected that we see more legal battles surrounding vaccination mandates. Although the ruling by Judge Hughes was based on Texas law, Illinois Courts should be on the lookout for similar cases that may arise in the future.
]]>Adopt a Password Management Policy
Employers should adopt a password management policy for all devices, web services, and applications. The policy should include rules for sharing user access to web services and applications, password construction, and multi-factor authentication requirements.
Many web services and applications designed for business operations allow license holders to have multiple logins. Instead of creating a single account with one username and password, employers should consider requiring each employee that accesses the system to create and maintain their own login information. Thus, employers can minimize exposure of that login information being stolen to access the service.
Passwords can be an entry point for various forms of cyber threats. Therefore, employers should require strict rules for employees allowed to set up their own accounts. Passwords that offer the most security should include the following characteristics:
Finally, employers should consider requiring employees to establish multi-factor authentication on devices and web services. For example, once an employee attempts to log into a web service like the employer’s email system, a multi-factor authentication system will send a message to the employee’s phone or email with a single-use passcode to enter the web service. That way, if a third party tries to maliciously gain access, the web service will notify the employee.
The Power of Phishing Scams
Phishing involves a third party sending an email to an employee’s email address requesting sensitive information or contain malware linked or attached to the email. Phishing scams are often the easiest way for hackers to access private systems and steal sensitive information.
The Federal Trade Commission (FTC) offers advice on how to train employees to identify and report phishing scams. Tips include looking for emails that request an employee to send personal information login credentials, the email appears to be sent from a legitimate website, the email states your account is on hold or requests the person receiving the email to click on a link or download a file. In addition, employers should maintain security software to thwart these scams, require employees to automatically update employee-owned devices, use multi-factor authentication, and back up their data on an external hard drive or the cloud.
Require Mandatory IT Training
Many employers these days have some form of internet service. Whether they use sophisticated credit management systems or a simple email account, local governments and small businesses use the internet in many ways. If you have an IT department or retain IT services, inquire whether you can establish a periodic IT training regime. In addition, ask your IT professional for occasional cybersecurity updates, helpful tips, and issues to know for employees to keep data safe. Finally, encourage employees to notify IT or supervisors of red flags with an employer’s system.
]]>Since the federal government initiated emergency use authorization (EAU) for COVID-19 vaccines, employers have been chopping at the bit for more precise guidance on vaccinations for employees in the workplace. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued that guidance.
Below is a summary of that guidance provided from an EEOC press release on the new guidance:
Most public or private employers considering implementing a COVID-19 vaccination policy will have to determine whether a voluntary or mandatory vaccination policy is best for their workplace. In most cases, employers will experience the fewest legal hurdles “encouraging” employees to voluntarily take a vaccine instead of requiring them to do so. Expressing the importance of public health and workplace safety, supplying accurate information, and providing, in some instances, incentives to employees to receive a vaccine, employers can maximize vaccination rates and ensure minimum exposure to liability.
Regardless of a voluntary or mandatory policy, employers should always follow state and federal medical recordkeeping requirements when collecting information and documents regarding an employee’s health, including vaccination status. Employers should consider compiling valuable and accurate information regarding COVID-19 workplace safety and vaccinations. The EEOC guidance provides a list of materials employers can share with employees.
Finally, employers should speak with their legal counsel and human resources department before implementing a voluntary or mandatory vaccination policy. Some state or local laws may require additional procedures for vaccinations, and some employees may require specific needs. Further, the EEOC is unclear about constitutes an employee “incentive” when encouraging employees to get a vaccine from a third-party medical provider or directly from the employer or its agents. By discussing the matter with legal counsel, an employer can determine lawful and reasonable incentives under its internal policies.
During the pandemic, many employers were caught off guard as COVID-19 drastically changed the nature of the workplace. One area that has caused some confusion—especially for local governments—is the changes to premium benefits under COBRA after President Biden passed the American Rescue Plan (ARP) into law earlier this year.
What is COBRA?
The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides workers and their families with a temporary extension of health benefits through their (former) employer’s group health insurance plan. A qualifying individual can receive benefits under COBRA for various reasons, including a voluntary or involuntary loss of employment, forced reduction of work hours, temporary leave of absence, death, divorce, or other life events—this is called a “qualifying event.”
Employers with 20 or more employees in the prior calendar year must offer a continuation of coverage where, typically, such a change in employment would prompt benefit coverage to end. COBRA benefits usually last between 18-36 months, depending on the nature of the qualifying event. Although considered a benefit, COBRA still requires employees to pay premiums on the employer’s group health plan. COBRA, however, prohibits an employer from charging more than 102% in premium payments for beneficiaries of the program compared to similarly situated employees receiving regular coverage.
How Does the American Rescue Plan Impact Cobra?
Under the ARP, starting April 1, 2021, through September 30, 2021, employees considered “Assistance Eligible Individuals” (AEI) are entitled to 100% of their COBRA premiums paid by the employer. For example, if an AEI’s COBRA coverage ended on June 1, 2021, the employer would have to pay the AEI’s full premium payments for two months (April and May).
By May 31, 2021, employers and plan administrators that provide COBRA benefits must have sent out a notice regarding eligibility for COBRA premium assistance to AEI’s that elected for coverage if their 18-month benefits coverage window falls in April 2021. Employers and plan administrators must also notify AEI’s within 15-45 days of the subsidized premium expiration.
The ARP defines AEI’s as individuals that elect COBRA coverage after experiencing a qualifying event. Qualifying events under the ARP include a reduction of work hours (for example, the employer had to reduce business operations because of COVID-19), a change from full- to part-time status, taking a temporary leave of absence, lawful participation in a labor strike, or involuntary termination. Importantly, subsidized COBRA benefits do not cover an individual that may be qualified for coverage under another group benefits plan like a new employer’s plan.
After September 30, 2021, unsubsidized COBRA coverage reinitiates, and AEI’s with elected COBRA coverage must continue paying premiums by their regular due dates as summarized by EBSA Disaster Relief Notices 2020-01 and 2021-01.
ARP is unique in that employees benefit from coverage without the cost, but that means employers must eat that cost. The federal government grants employers paying for COBRA premium benefits to AEI’s a tax credit on federal payroll taxes to rectify this. By doing this, the federal government can ensure employees receive quick and efficient access to subsidized premiums but not financially cripple employers dredging through economic recovery.
Local Governments and the ARP
It should be noted that many questions have arisen about how the ARP affects local governments. Under the Public Health Service Act (PHSA), state and local government employers that fall under the PHSA must provide AEI’s with benefits coverage under the ARP.
If for some reason, a local government does not have a federal tax liability, it is still eligible for credit by the federal government. Recent Internal Revenue Service (IRS) guidance states that if an entity is required to provide COBRA benefits, but does not have a federal employment tax liability, it “can still claim credit on the Form 941 for the quarter in which the premium payee becomes entitled to benefits.” Further premium payees may “(1) reduce the deposits of federal employment taxes, including withheld taxes, that it would otherwise be required to deposit, up to the amount of the anticipated credit, and (2) request an advance of the amount of the anticipated credit that exceeds the federal employment tax deposits available for reduction by filing Form 7200.”
Employers looking for further guidance on extension of COBRA benefits should review the Department of Labor guidance and IRS guidance on COBRA subsidies under the ARP.
Elected Official Eligibility under COBRA
State and local governments have wondered whether their elected officials qualify for COBRA and premium payments under ARP. Based on available information, the Centers for Medicare Medicaid Services consider elected officials as qualified beneficiaries for typical COBRA coverage. So long as the elected official’s qualifying event falls under the list of qualifying events mentioned above, they should be eligible for premium assistance.
]]>Reporting Requirements
In addition to the requirement for state and local government employers to report all work-related fatalities within eight (8) hours and all work-related hospital admissions, amputations, and losses of an eye within 24 hours to Illinois OSHA by calling (217) 782-7860, employers now must report a COVID-19-related fatality, if the fatality occurs within 30 days of exposure at work. Employers must also report any COVID-19-related hospital admission within 24 hours of exposure at work.
Upon a reported case of COVID-19, Illinois OSHA may investigate. If the investigation reveals or clearly identifies a work-related exposure, Illinois OSHA will review the circumstances of the exposure to determine if a violation of the Illinois Occupational Safety and Health Act occurred. If the investigation reveals or clearly identifies that the exposure occurred outside of the workplace, Illinois OSHA would close the investigation.
Recordkeeping Guidance
COVID-19 is a recordable illness under Illinois law, which means employers must record cases if:
Employers should code documented cases of COVID-19 as respiratory on OSHA Form 300. Employees may voluntarily request to have their names excluded from the employer’s records—when this occurs, employers must comply.
Employers should note that maintaining records of documented employee COVID-19 cases does not necessarily mean the case was work-related or that the employer violated any Illinois OSHA standards. Instead, proper recordkeeping is a matter of public health to protect worker health and safety.
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