COVID-19 UPDATE from Bellas & Wachowski

downloadThe Supreme Court decided two years ago in Carpenter v. United States that the Fourth Amendment requires police to obtain a warrant, in most circumstances, to access GPS location information spanning seven days or more from a cell phone user.   Prior to that decision, the court had held that voluntarily providing this information to third parties like technology companies did not have Fourth Amendment protections and thus litigants did not have any reasonable expectation of privacy.

Although the court majority labeled the decision “narrow,” it nonetheless led to questions about where else Fourth Amendment protections might be applied in future decisions related to various forms of technology. Dissenting Justice Samuel Alito predicted the decision “guarantees a blizzard of litigation.”

While Justice Alito was correct that some new cases have come forward, but for the most part lower courts have followed the contours of the Carpenter decision when asked whether users can be granted Fourth Amendment protection for such non-content data as financial and billing records, IP addresses, subscriber records, and lists of devices that accessed a wireless network.   Most recently, in June, the First Circuit Court of Appeals overturned a lower court ruling granting Fourth Amendment protection to eight months’ worth of video feed recorded by a pole camera, labeling this a “conventional surveillance technique” and thus not analogous to collection of cell-site location data.

George Bellas Chicago Business Lawyer George Bellas answers questions for business owners.

Workman’s Comp for Essential Workers

An emergency rule promulgated in April by the Illinois Workers’ Compensation Commission gave certain classes of “essential” workers the ability to claim COVID-19 as an occupational disease vis-à-vis the ability to collect workers compensation.  This is a change that every Illinois business should be aware of.

The commission withdrew the rule after a court challenge, but last month Governor J.B. Pritzker signed legislation amending the Illinois Workers’ Occupational Diseases Act (820 ILCS 310, codified as Public Act 0633) to say that a “COVID-19 first responder or front-line worker” has the rebuttable presumption of having contracted the disease due to hazards and exposures in the workplace.

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Evictions Due to Pandemic Issues

The moratorium is scheduled to end on July 31, 2020, it may very well be extended again. Once the moratorium period ends, Illinois landlords can file eviction suits due to the non-payment of rent.

NOTICE TO LANDLORDS:  Chicago residential tenants, who have lost income as a result of the COVID-19 pandemic, can respond to their landlords within five days of receiving an eviction notice under a Chicago Ordinance.  The notice must be in writing, whether in the form of a letter, email or text message. The notice can be as simple as, “I have been unable to pay rent because I have been financially affected by the COVID-19 pandemic.” For a more formal template, go to: www.chicago.gov/eviction

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Health and Safety Regulations

On June 24, Virginia became the first state in the country to implement workplace health and safety rules to protect workers from coronavirus infections. Could Illinois be next?   Whatever happens, these actions should serve as an example of what every  business should do.   

Virginia’s health and safety board agreed to create finalized rules after the state’s Department of Labor and Industry drafted an emergency temporary standard in late May. The office of Governor Ralph Northam said the idea arose because the federal Occupational Safety and Health Administration (OSHA) has received more than 4,000 complaints related to coronavirus but only issued one citation, according to the Washington Post.

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Small Businesses Reopening

As of today June 26, Illinois has reached Stage 4 of coronavirus reopening, which allows essentially all types of businesses to reopen provided they observe public health safety guidance and capacity limits, with no more than 50 people allowed in one place.

What does this mean for businesses, and how can they protect themselves—and their employees and customers—medically, financially and legally?

D07714B9-62C2-4CD4-9E64-620ACBE27095-300x251How concerned should small businesses be about wrongful discharge lawsuits from plaintiffs terminated after alleging publicly that their employer did not follow health and safety guidelines to combat the spread of COVID-19?

The first clues may emerge from one of the first employment lawsuits related to the pandemic, filed in late May in Dallas County, Iowa. The plaintiff is a former county jail employee who called a hotline set up by the Department of Corrections after a co-worker who tested positive for COVID-19 was allowed to resume work due to being asymptomatic.

The sheriff’s office ultimately decided that the infected employee would not return, but the sheriff allegedly grew furious after hearing of the hotline call, according to the lawsuit, which says he viewed the plaintiff as disloyal and disrespectful of the chain of command.

For the first time to our knowledge a judge has ordered rent relief for a Chicago restaurant.   The bankruptcy judge ruled that the “Act of God” clause in the lease gives the restaurant rent relief when it was forced to closed during the the COVID-19 mandatory closings.

George Bellas Chicago Business Lawyer George Bellas answers questions for business owners.

CoronaVirus FAQs

The force majeure clause in the lease of Italian restaurant Giglio’s State Street Tavern eliminated the restaurant’s obligation to pay full rent during the time when the City and State implemented the “stay-at-home order” to deal with the pandemic.   (For more info on the force majeure contact clause, see my other Blog on force majeure.)

George Bellas Chicago Business Lawyer George Bellas answers questions for business owners.

Employment Issues in the Pandemic

Employees who decline to show up to a physical work location based on a city, state or doctor’s coronavirus-related health order are protected from employer retaliation under a newly passed City of Chicago ordinance.

Chicago-based businesses, defined as those with physical facilities in the city, or subject to its licensing requirements, must not take adverse actions against any employee following the  COVID-19 dictates of the Chicago mayor, city Department of Public Health, governor of Illinois, or their own treating healthcare provider.

Illinois Governor J.B. Pritzker issued an executive order on April 1 designed to protect health care providers from litigation arising out of COVID-19 cases. How does it do so, and how well would it work in practice if a lawsuit were filed?  The Emergency or Disaster Treatment Protection Act notes that statewide public health emergencies require “an enormous response” from different levels of governments working alongside private and public health care providers.

As such, the order attempts to “promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.”

Pritzker’s order declares immunity from “any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services,” so long as COVID-19 emergency rules and other applicable laws are followed; the act or omission related to the COVID-19 outbreak is in support of the state’s directives; and the services are provided in good faith.

Chicago Business Lawyer George Bellas answers questions for business owners.

CoronaVirus FAQs

Business owners are anxious to reopen their doors and revive their sales.  But there are concerns that the proper precautions be taken to protect their employees and customers, at a time when no treatment or vaccine for COVID-19 appears imminent.

As governors and mayors begin to ease restrictions on businesses, previously shuttered retailers, restaurants and others have another concern that could hold them back from reopening just as surely: whether and to what extent they can be held legally liable for employees or customers who contract coronavirus.