Note: This Client Bulletin anticipates Chicago will move into Phase 3 of its reopening plan on June 3. Mayor Lightfoot stated the City intends to proceed with the transition on June 3 notwithstanding the current civil unrest. However, the timelines stated in this client Bulletin are fluid and subject to change.
As states and municipalities across the nation begin to ease restrictions on businesses to allow them to “reopen” and resume economic activity, employers are evaluating how to safely return employees to the workplace. Businesses are faced with a maze of laws, regulations, orders, and “guidance” from the federal, state, and local level – many overlapping, some conflicting. Faced with this unprecedented situation, it is imperative businesses implement a reopening with three overarching goals: (1) employee and customer safety, (2) compliance with applicable regulations and (3) mitigation of potential liability. There is no one size fits all approach -- it will be dependent on, among other things, the specific state and locality where the business is located, the type of business and its physical space.
On June 3, it is anticipated most “non-essential” businesses within the City of Chicago, including office-based businesses not previously deemed essential, will be permitted to reopen subject to numerous limitations and restrictions. Below we provide some background on Illinois’ and Chicago’s reopening schemes, discuss Chicago’s new Anti-Retaliation Ordinance, and provide links to helpful information.
Illinois’ Five-Phase Reopening Plan
In early May, the State of Illinois issued its “Restore Illinois” plan providing for a five-Phase reopening of Illinois, on a region-by-region basis, based on a region achieving certain virus-related metrics. Up until May 29, the entire State was in Phase 2, which severely restricted the operations of “non-essential” businesses. Except for the City of Chicago, which is anticipated to move to Phase 3 on June 3, Illinois is now in Phase 3 of the Restore Illinois plan. Per the plan, Phase 3 generally means: “Manufacturing, offices, retail, barbershops and salons can reopen to the public with capacity and other limits and safety precautions. Gatherings limited to 10 people or fewer are allowed. Face coverings and social distancing are the norm.” If the applicable virus metrics change for the worse – e.g. a new spike – the plan provides for moving back to earlier Phases. The following is a link to the Restore Illinois plan explaining the five Phases:
Chicago may Move into Phase 3 on June 3
It is anticipated Chicago will move into Phase 3 on June 3. Both the State of Illinois and the City of Chicago have published their own industry-by-industry safety “guidelines” applicable to businesses reopening in Phase 3. For example, office-based businesses have different guidelines than restaurants. Two important highlights:
- A Chicago business needs to comply with both Illinois’ guidelines and Chicago’s guidelines. In some circumstances, guidelines in the Illinois plan are not in the Chicago plan and vice versa, so it is extremely important a Chicago business review and implement all aspects of both sets of guidelines. In addition, to the extent a particular guideline in one set of guidelines is stricter than a similar guideline in the other set, a Chicago business must comply with the stricter guideline.
- The State of Illinois’ COVID-19 Executive Orders (issued by Governor Pritzker) are mandatory and apply to all individuals and businesses within Illinois. Based on this, we currently interpret the reopening “guidelines” issued by both Illinois and Chicago as mandatory. In addition, to mitigate potential liability to employees or customers who become ill, these Illinois’ and Chicago’s guidelines should be viewed as minimum best practice requirements.
Below are links to Illinois’ and Chicago’s Phase 3 guidelines which include lists of businesses permitted to reopen and applicable safety guidelines for each type of business:
Chicago Offices in Phase 3
Chicago’s Phase 3 guidelines are “applicable to businesses that meet the following criteria: conduct operations from within non-customer-facing office spaces (standalone and within multi-tenant buildings).” “Examples of businesses operating within offices include (non-exhaustive): legal services, accounting services, architectural/engineering design.” For such businesses, Illinois’ and Chicago’s Phase 3 guidelines are voluminous, and it is incumbent on each business to review and implement these guidelines (see links immediately above). As stated above, our current interpretation is that these guidelines are mandatory. The following is a partial list of guidelines applicable to Chicago offices during Phase 3:
- Employees who can work from home should continue to do so.
- Limit capacity to 25% for all indoor spaces, including tenant spaces. Note, this is an example of a Chicago guideline that is stricter than Illinois’ guideline, which limits capacity to 50%. The guidelines do not specify whether the capacity limits are based on the occupancy limits established by the local fire marshal or workforce headcounts. But, based on other states’ similar capacity rules, it appears the Illinois and Chicago limits are based on a space’s capacity per the fire marshal. More guidance on this issue might be published as Illinois and Chicago updates their guidelines.
- Social distancing.
- Where possible, workspaces should be separated by impermeable barriers to enhance safety.
- Individuals are required to wear a face covering at all times in common areas or where 6-foot distancing is not possible.
- Where possible, workspaces should be reconfigured to maintain appropriate distancing.
- Post signage throughout your workspace regarding hygiene and social distancing. (Signs can be printed from the Illinois link above).
- Close small common areas to avoid large gatherings.
- Make sanitation stations readily available for employee and customer use, including at the main entrance to each office suite.
- Follow Centers for Disease Control and Prevention (CDC) and Chicago Department of Public Health (CDPH) guidance for testing and tracing protocols. For example, if a facility becomes aware of two or more COVID-19 cases possibly associated with an establishment over a 14-day period, employers are required to report cases to the CDPH. The following are links to the CDC’s and CDPH’s respective guidance:
Chicago Anti-Retaliation Ordinance
On May 20, Chicago enacted the “Anti-Retaliation Ordinance” prohibiting employers from retaliating against employees due to COVID-10. The Ordinance prohibits an employer from terminating, demoting or taking any adverse action against an employee for obeying an order issued by the Mayor of Chicago, the Governor of Illinois, the CDPH or, generally speaking, a treating healthcare provider, requiring the employee to: (1) stay at 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 employee; (4) obey an isolation order issued to the employee; or (5) obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities. Employers are also prevented from terminating, demoting, or taking any adverse action against employees that stay home to care for an individual subject to (1), (2) or (3) above. If an employer learns of a violation and cures it within 30 days, the employer may not be held liable. Violations can lead to citations of up to $1,000 per offense per day.
CDC and OSHA Guidance
The CDC and the Occupational Safety and Health Administration (OSHA) have also issued their own business reopening guidelines. For example, the CDC recommends all employers take the following actions to reduce employees’ risk of exposure to COVID-19:
- Conduct health checks. Actively encourage sick employees to stay home. Consider conducting daily in-person or virtual health checks (e.g. symptom and/or temperature screening) of employees before they enter the facility, in accordance with state and local public health authorities.
- Conduct a hazard assessment of the workplace. Conduct a thorough hazard assessment to determine if workplace hazards are present, or are likely to be present, and determine what type of controls or PPE are needed for specific job duties. For example, encourage employees to wear face coverings in the workplace, if appropriate.
- Implement policies and practices for social distancing in the workplace. Alter workspace to help employees maintain social distancing and physically separate employees from each other, when possible. For example, but without limitation, implement flexible worksites (e.g. telework), implement flexible work hours (e.g. rotate or stagger shifts to limit the number of employees in the workplace at the same time) and increase physical space between employees by modifying the workspace.
- Improve the building ventilation system. This includes the following, among other activities: increase ventilation rates and ensure ventilation systems operate properly and provide acceptable indoor air quality for the current occupancy level for each space
Likewise, OSHA recommends all employers take the following actions:
- Developing or Updating an Infectious Disease Plan: Such plans should, among other things, consider employees’ potential exposure risks, prepare for increased rates of absenteeism, and develop plans for staggered work shifts and other exposure-reducing measures.
- Implementing Basic Infection Prevention Measures: Promote handwashing and use of hand sanitizer (at least 60% alcohol), practice social distancing (i.e. staying 6 feet away from co-workers and members of the public, if possible), encourage sick workers to stay home, and maintain routine cleaning and disinfecting practices.
- Developing Policies for Isolating Sick People: Employees must be informed how to appropriately report symptoms of COVID-19, and human resources personnel should be prepared to isolate and remove sick employees from the workplace.
Best practices are to incorporate elements of the CDC’s and OSHA’s guidance into your plan to the extent applicable and not covered elsewhere. Further, although the OSHA guidance expressly states it is “not a standard or regulation, and it creates no new legal obligations,” as stated above, we interpret the reopening “guidelines” issued by Illinois and Chicago as being mandatory. Thus, to the extent the CDC or OSHA guidelines are incorporated into the Illinois or Chicago guidelines (which they frequently are) those guidelines would presumably be mandatory as well.
The following are links to the CDC’s and OSHA’s full respective guidelines:
No matter what your business or location, there are several key points of broad applicability:
- Review all federal, state, and local regulations, ordinances, and guidance applicable to your business.
- Prepare a detailed reopening plan and put it in writing.
- Share your plan with all employees, require that they read it and comply with it.
- Communicate frequently with your employees regarding your plan and listen to their concerns. Provide flexibility when possible.
Finally, as you review the regulations and guidance, you will see much has been left open to interpretation and is fluidly evolving as conditions change. Businesses will often be in the position of having to make difficult judgment calls, with employee and customer safety always front and center.
The attorneys at Gozdecki, Del Giudice, Americus, Farkas & Brocato LLP are available to answer your questions and help you navigate the maze of regulations, ordinances, and guidance.
Please note that information contained in this Client Bulletin is not and should not be construed as legal advice or opinion nor does this news alert create an attorney-client relationship.