United States: Chicago Passes COVID-19 Anti-Retaliation Ordinance

Seyfarth Synopsis: On May 20, 2020, Chicago passed an ordinance protecting covered employees who remain at home for complying with public health orders or for other COVID-19 related reasons. Specifically, the Ordinance prohibits employers from terminating or demoting employees who cannot work due to various COVID-19 related reasons, even if the employee has exhausted legally-protected or employer-provided leave.

Employer Obligations Under the New Ordinance

Under Chicago's Anti-Retaliation Ordinance (the "Ordinance"), effective immediately, employers cannot demote or terminate a "Covered Employee" for obeying an order issued by the Mayor, the Governor of Illinois or the Chicago Department of Public Health 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; and

(5) Obey an order issued by the Commissioner of Health regarding duties of hospitals and other congregate facilities.

The Ordinance also provides that Covered Employees cannot be terminated or demoted for obeying the order of a treating healthcare provider in case of reasons (2), (3) and (4) above.

In addition, an employer may not demote or terminate a Covered Employee for caring for an individual subject to sections (1), (2) and (3) above.

The Ordinance uses the same definitions as the Chicago Minimum Wage Ordinance (Chapter 1-24 of the Municipal Code of Chicago), which defines "Covered Employee" as employees who perform at least two hours of work (including compensable travel time) for an employer within a two-week period while physically present within the City of Chicago -- subject to a few exceptions. The law does not apply to government employees other than those working for the City and its sister agencies.

Consequences for Violating the Ordinance

Employers found to have violated the Ordinance may be subject to an administrative action or lawsuit by the Chicago Department of Business Affairs and Consumer Protection, including fines of up to $1,000.00 per offense per day. The Ordinance further provides Covered Employees with a private right of action to seek reinstatement, damages equal to three times the full amount of their wages that would have been owed had the retaliatory action not taken place, and actual damages directly caused by the retaliatory action, plus costs and attorneys' fees.

What This Means For Employers

Companies with employees performing work within the Chicago city limits, now more than ever, need to be careful when taking action against (terminating or demoting) employees who have expressed an inability to work due to COVID-19. Chicago employers should review their processes and policies for addressing COVID-19 related absences and keep this ordinance in mind when making employment decisions regarding Covered Employees.

COVID-19 anti-retaliation protections appear to be a growing trend, as other jurisdictions have enacted or are considering enacting similar laws. Employers with workforces outside of Chicago should ensure that they are familiar with the latest guidance in each location where they have employees and consult with employment counsel to ensure compliance.