Chicago's COVID-19 Anti-Retaliation Ordinance Impacts Employer Reopening Plans

On May 20, 2020, Chicago joined a growing number of municipalities across the U.S. that are enacting ordinances prohibiting retaliation against employees unable to return to work for COVID-19-related reasons.

The Chicago Anti-Retaliation Ordinance ("Ordinance")—effective immediately—prohibits an employer from demoting or terminating a covered employee for complying with an order issued by the Mayor, the Governor of Illinois, or the Chicago Department of Public Health, requiring the covered employee to:

1. Stay home to minimize the transmission of COVID-19;
2. Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
3. Obey a quarantine order issued to the covered employee;
4. Obey an isolation order issued to the covered employee; or
5. Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.

In the cases of (2), (3), and (4) above, a covered employee is protected from demotion or termination if the order is issued by a treating healthcare provider. In addition, the Ordinance provides protection for covered employees who are caring for an individual subject to (1), (2), or (3) above.

Who is a “covered employee”?
The Ordinance borrows the definition of “covered employee” from the city’s Minimum Wage and Paid Sick Leave Ordinance. The Ordinance defines “covered employee” as any employee “who, in any particular two-week period, performs at least two hours of work for an Employer while physically present within the geographical boundaries of the City.” (Chapter 1-24 of the Municipal Code of Chicago).

What is the penalty for violating the Ordinance?
The Ordinance has some teeth when it comes to enforcement. Violations of the Ordinance can lead to citations of up to $1,000 per offense per day. Additionally, covered employees may recover in a civil action: reinstatement to their previous position or to an equivalent position; damages equal to three times the full amount of wages lost; any other actual damages caused by the retaliatory action; and costs and reasonable attorney’s fees.

There is a safe harbor provision, however, which serves as an affirmative defense if the employer relies on a reasonable interpretation of an order and, upon learning that its interpretation was wrong, cures the violation within thirty (30) days.

What does this mean for employers?
With the Ordinance effective immediately, Chicago employers have one more law to consider when evaluating an employee's refusal to return to the workplace. Employers already must consider whether the employee's reason for not returning is protected under OSHA, constitutes a request for a reasonable accommodation under the Americans with Disabilities Act, or constitutes a request for leave under the Families First Coronavirus Response Act or the Family and Medical Leave Act. Now, Chicago employers must also consider whether there is a governmental order or order from a health care provider mandating the employee stay home. Chicago employers should update their handbooks and policy materials to include this new Ordinance.

For questions on the Chicago Ordinance and similar municipal ordinances or assistance in incorporating their requirements into existing policy materials, please contact your local Quarles & Brady attorney or:

• Gary Clark: (312) 715-5040 / gary.clark@quarles.com
• Kaitlin Phillips: (312) 715-5179 / kaitlin.phillips@quarles.com