Covered employers in Chicago should proceed with their plans for implementing advance scheduling policies, processes, forms and training by July 1, 2020.

On May 20, 2020, Chicago City Council passed two ordinances in response to the COVID-19 pandemic. The COVID-19 anti-retaliation ordinance prohibits adverse actions against employees for following any public health guidelines issued by the mayor, governor, Chicago Department of Health or a healthcare provider’s directive requiring an employee to stay home to minimize transmission of COVID-19. In an amendment to the Chicago Fair Workweek (CFW) Ordinance, City Council also provided employers with a small measure of relief from the advance scheduling requirements set to take effect on July 1, 2020, delaying the implementation of the private litigation rights provision of the ordinance by six months.

COVID-19 Anti-Retaliation Ordinance

The COVID-19 anti-retaliation ordinance prevents employer retaliation against employees for following any public health guidelines from the mayor, governor or Chicago Department of Health, or for staying home to self-quarantine based on a healthcare provider’s direction to help prevent COVID-19 spread. Employers also are prohibited from demoting or terminating an employee who takes time off to recover from coronavirus symptoms, complies with quarantine or isolation orders, or cares for a family member for any of these reasons.

Covered employees who believe they have been fired or demoted in violation of this new COVID-19-related anti-retaliation requirement may submit a complaint to the Chicago Office of Labor Standards, who will investigate the claims. Employers found in violation of the ordinance could be fined up to $1,000 per offense per day. However, if an employer relied on a reasonable interpretation of a public health order or if it learns of a violation and fixes it within 30 days, the employer will not be subject to penalties. Employees may file a civil action seeking reinstatement to their prior position or an equivalent one, plus payment of damages in an amount up to three times the amount of lost wages and an award of attorneys’ fees.

This anti-retaliation ordinance is effective immediately upon approval by Mayor Lori Lightfoot and will be repealed upon written notice of the Commissioner of Public Health when the COVID-19 pandemic threat has diminished sufficiently. Chicago employers should continue to exercise caution and careful judgment to avoid claims of retaliating against an employee based on COVID-19 symptoms, diagnosis, quarantine or other related reasons.

Chicago Fair Workweek Ordinance

Originally signed into law by Mayor Lori Lightfoot in July 2019 with an effective date of July 1, 2020, the CFW Ordinance requires certain private sector employers to provide eligible employees making less than $26 an hour or $50,000 a year with a number of predictable scheduling protections, which include:

• Pre-employment good faith written estimates of the employee’s projected days and hours of work
• Advance notice (beginning with 10 days, increasing to 14 days in 2022) of the employee’s work hours and schedule
• Right to request schedule modifications
• Right to decline certain previously unscheduled hours without adequate rest periods
• Right to “predictability pay” for any schedule changes made within the defined advance notice period

Covered employers also must comply with additional notice and recordkeeping requirements. Employers subject to the ordinance must meet certain size requirements and be in one of seven covered industries (building services, healthcare, hotels, manufacturing, restaurants, retail and warehouse services). For a full discussion of the advance scheduling requirements, see item No. 8 in our prior Alert for Illinois employers.

The CFW Ordinance was set for full implementation on July 1, 2020, but the amendment passed by City Council on May 20, 2020, will defer one of the enforcement provisions until January 1, 2021. The deferred provision prevents employees from being able to file private lawsuits against employers for failing to adhere to the advance scheduling rules. Citing the businesses that are struggling during the coronavirus pandemic, City Council members indicated that postponing the private cause of action section of the ordinance is intended to provide businesses with additional time to implement the CFW Ordinance requirements without fear of lawsuits within the first six months.

Of note, the deferred enforcement does not apply to investigations by the city’s Department of Business Affairs and Consumer Protection, which may pursue violations reported after July 1, 2020. As such, employers have not been relieved of their responsibility for complying with the advance scheduling requirements of the CFW Ordinance by the original effective date of July 1, 2020. Covered employers in Chicago should proceed with their plans for implementing advance scheduling policies, processes, forms and training by July 1, 2020.

For More Information

If you have any questions about this Alert, please contact Daniel O. Canales, Jennifer Long, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.