Chicago Approves Landmark COVID-19 Anti-Retaliation Ordinance

By William Pokorny and Caroline Kane - Franczek P.C.

May 22, 2020

This week, the Chicago City Council approved an Ordinance ensuring that “Covered Employees” can remain at home for COVID-19 related reasons without fear of being fired, even if they have exhausted any legally-mandated or employer-provided leave time.

“Covered Employees” are the employees covered by the Chicago Minimum Wage Ordinance, which, with a few exceptions, applies to employees who perform at least two hours of work for an employer within a two-week period while physically present within the City of Chicago. The law does not apply to government employees other than those working for the City and its sister agencies.

Effective immediately, employers cannot demote or terminate a Covered Employee for obeying an order issued by the Mayor, Governor, Chicago Department of Public Health, or, in the case of items 2, 3 and 4 below, 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 while sick with COVID-19;
3. Obey a quarantine order issued to the Covered Employee;
4. Obey an isolation order issued to the Covered Employee; and
5. Obey an order issued by the Commissioner of Health regarding duties of hospitals and other congregate facilities.

Employers are also prevented from taking adverse action against a Covered Employee for caring for an individual subject to subsections 1–3 above.

Employers who violate this Ordinance by taking retaliatory action can be subject to legal action instituted by the Commissioner of Business Affairs and Consumer Protection. Wrongfully terminated employees may also bring a civil suit for up to three times the full amount of wages the employee would have been owed, plus any actual damages together with costs and reasonable attorney’s fees.  The Covered Employee may also be entitled to the reinstatement of his or her position or to an equivalent position.

The Ordinance provides an affirmative defense for employers who can prove they relied on a reasonable interpretation of a public health order and, upon learning of the violation, rectified their action within 30 days.

The Ordinance does not require employers to allow otherwise healthy employees to refuse to work in a capacity that is permitted by current governmental orders. However, if an employer fails to comply with social distancing requirements, capacity limitations, or other conditions imposed by current governmental orders, an employee who refuses to work as a result of such failures may be protected from retaliation under the Ordinance. Because of this, employers that continue to operate in Chicago during the COVID-19 crisis are well-advised to carefully comply with all applicable state and local orders and to take employee concerns about safety and compliance with such orders seriously.

The anti-retaliation ordinance will be in effect until the Commissioner of Public Health issues a “written determination that the threat to public health posted by COVID-19 has diminished to the point that this ordinance can be safely repealed.”

If you have any questions or concerns regarding the application of this Ordinance, please contact a Franczek attorney for guidance.