New Cook County Ordinance Requires Vaccination Pay for Employees

As more employers consider mandatory COVID-19 vaccination programs, companies with Illinois employees should keep in mind a new Cook County ordinance that requires paid time off, or paying an employee, for time spent getting vaccinated. The new ordinance, the "COVID-19 Vaccination Rights for Employees and Prohibition of Retaliation by Employers" ("Ordinance"), covers all of Cook County, which includes the City of Chicago. We detail the protections, areas of ambiguity, and practical issues below.

Protections and Obligations

The Ordinance, which became effective July 1, 2021, outlaws taking adverse or negative personnel actions against an employee for taking time during a shift to get a vaccine. Notably, this includes a prohibition on giving the employee attendance consequences for the absence under an attendance policy.

Employers mandating vaccination for their employees should pay special attention to the new ordinance's requirement to pay for vaccination time. The Ordinance explicitly states that when the employer mandates vaccination, employees must receive compensation at the regular rate of pay for the time it takes to attend a vaccination appointment during a shift, up to four hours per vaccination dose. Because the employer is mandating vaccination, it cannot require an employee to use accrued available PTO or sick time to cover the work time missed for vaccination. Conversely, there is no requirement to pay for employee vaccination time when vaccination is not mandated. In that scenario, the employee would only be allowed to use any accrued, unused, and available sick time or PTO for the vaccine appointments.

Whether vaccination is mandatory or voluntary, the Ordinance forbids an employer from requiring an employee to get vaccinated only during non-shift hours or requiring an employee to locate a replacement to cover the shift during the employee's vaccination appointment.

• Practical Insight: As an immediate practical consideration, covered employers will want to evaluate mandatory vaccination policies applicable to employees in Cook County, making arrangements for these employees to have up to four hours of paid time for each vaccination appointment.

Coverage

Open questions also linger around the Ordinance's coverage provisions. By its terms, the Ordinance covers private entities that employ at least one person and have a principle place of business within Cook County or do business within the County. For entities meeting this criteria, the Ordinance applies to all employees, which probably means any employees working within Cook County. However, the Ordinance does not expressly limit its coverage, and it leaves unclear whether the Ordinance also applies to employees located outside Cook County for entities that are otherwise covered. Historically, Cook County's employment-related ordinances have applied to employees working within the County. The coverage question is unsettled, though, and will require future resolution. In the meantime, Cook County businesses should seek legal guidance on this coverage issue.

Also of note, the Ordinance applies to volunteers and training/apprenticeship program participants. This aspect of the Ordinance creates ambiguities as well, given that volunteers and training program participants are often unpaid, have no formal paid leave benefits, and are not subject to the types of adverse employment actions prohibited by the Ordinance. The most likely interpretation is that volunteers and program participants must be excused during program hours to attend vaccination appointments and not penalized for the absences.

Remedies and Repeal Date

The Ordinance provides for the Cook County Commission on Human Rights to investigate alleged violations of the Ordinance. Individuals with specific claims also have a private right of action in Illinois state court. Penalties include actual damages (e.g. back pay for employees), fines between $100 and $500 for each offense, attorney's fees, and non-monetary damages such as reinstatement.

The Ordinance remains in effect until the Director of the Cook County Public Health Department determines in writing that the public health threat posed by COVID-19 has diminished to the point that the Ordinance can safely be repealed.  

For more information on how the new Cook County Ordinance may impact your business operations, please contact your local Quarles & Brady attorney or:

• William Walden: (312) 715-5111 / william.walden@quarles.com
• Gary Clark: (312) 715-5040 / gary.clark@quarles.com