COVID-19 UPDATE from Bellas & Wachowski

Some Employees Can Refuse to Report to Work Under New Chicago Ordinance

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.

These orders can require any combination of staying at home to squelch COVID-19 transmission, remaining at home while symptomatic with the disease, any sort of quarantine or isolation, or a health commissioner rule about the duties of hospitals or group healthcare facilities. Employees are also protected from retaliation if they are caring for someone subject to stay at home, remain at home or quarantine orders.

The ordinance, which will remain on the books until the city public health commissioner decides the threat of coronavirus has receded sufficiently, does not require employers to permit otherwise healthy employees, who do not fall under any of the aforementioned categories, to stay at home.

But there is an exception to that: If the employer is not following public health requirements regarding COVID-related precautions like social distancing, capacity limits and face coverings, any employee who refuses to show up in person cannot be retaliated against until and unless the employer comes into compliance.

Employers who violate the ordinance face two possible repercussions: the city’s commissioner of business affairs and consumer protection can bring action in either an administrative hearing or court or law; and employees themselves may bring civil suit to petition for reinstatement, treble damages, any other provable damages, and reasonable attorneys’ fees and related costs.

In their defense, employers would need to show that they had understood and reasonably interpreted the public health order, and that within 30 days or receiving notice, they had rectified their violation.

What if Employees Won’t Comply?

Not addressed by the Chicago ordinance, but also an issue that employers everywhere are facing, is the flip side of the precautionary coin: employees who show up to work but refuse to follow employer mandates about measures like wearing masks, saying they violate personal freedoms, and perhaps even constitutional rights.

For the most part, employees who refuse to wear a face covering or otherwise comply with COVID-19 return-to-work protocols can be suspended or even fired if they continue to violate compliance after warnings. But there are a few exceptions here as well.

If the employee has a medical reason for not wearing a face covering, such as asthma or another respiratory condition, they might have a claim under the Americans With Disabilities Act if the employer forces the issue. The best course of action would be to find an accommodation allowing the employee to continue to work, such as moving their workstation or changing their shift so they can more safely distance from co-workers.

Another exception would be those with a religious reason for refusing to wear a face covering, who would be covered under Title VII of the Civil Rights Act of 1964. Making an accommodation similar to those previously suggested for employees with medical exceptions also would be the way to go in this case.

Lastly, if an employee is represented by a labor union, the employer should consult the relevant collective bargaining agreement to see whether it can require face coverings or other precautionary measures unilaterally, or whether negotiation would have to be involved.

Outside of these exceptions, employers can take action as long as it’s done in a non-discriminatory fashion. But one might consider starting with easygoing reminders and then ramping up the firmness of requests before turning to formal discipline.