On April 22, 2020, Chicago Mayor Lori Lightfoot, with the backing of several Aldermen, introduced the COVID-19 Anti-Retaliation Ordinance (the “Ordinance”), which, if enacted, would prohibit Chicago employers from retaliating against employees for obeying a public health order requiring an employee to remain at home as a consequence of COVID-19. This reflects a growing trend among states and local governments in enacting protections against retaliation amid the COVID-19 pandemic.
The Ordinance would prohibit employers from demoting or terminating a “Covered Employee”[1] for obeying an order issued by the Mayor, the Governor of Illinois or the Chicago Department of Public Health requiring the Covered 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 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.
An employer would also be prohibited from retaliating against a Covered Employee for obeying an order issued by the employees’ treating healthcare provider relating to subsections (2), (3) and (4) above.
Finally, the anti-retaliation protections would extend to Covered Employees who are caring for an individual who is subject to subsections (1)-(3) above, and would apply even if workers have exhausted any earned sick-leave time available pursuant to Chicago’s Paid Sick Leave Ordinance.
Affirmative Defense
The Ordinance would allow an employer to assert an affirmative defense if it relied upon a reasonable interpretation of the public health order at-issue and, upon learning of the violation of the Ordinance, cured the violation within 30 days.
Penalties/Damages
The Ordinance has teeth: violations can lead to fines of up to $1,000 per offense per day, and Covered Employees who have been retaliated against may pursue the following recovery in a civil action: (i) reinstatement; (ii) damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place; (iii) actual damages caused directly by the retaliatory action; and (iv) costs and reasonable attorneys’ fees.
Next Steps
The Ordinance has been referred to the Chicago Committee on Workforce Development for further deliberation.
A Growing Trend
The protections the Ordinance would afford to employees are consistent with a growing trend among state and local governments in response to the COVID-19 crisis. Similar protections have been established through emergency orders or rules in New Jersey, Michigan and Washington which prohibit employers from disciplining or terminating employees for requesting or taking time off after contracting or, in some circumstances, being exposed to COVID-19. Other states, such as New York and California, have issued guidance applying existing federal, state, and local anti-discrimination and anti-retaliation laws to prohibit employers from discriminating against or refusing to provide reasonable accommodations for employees who contract or are otherwise impacted by the virus. As state legislative and executive responses continue to rapidly evolve, employers should ensure that they are familiar with the latest guidance in each state where their employees are located.
[1] “Covered Employee” generally means any employee who, in any particular two-week period, performs at least two hours of work for an employer while physically present within the geographic boundaries of the City of Chicago. Chicago, Ill., Mun. Code § 1-24-010.
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