On May 20, 2020, the Chicago City Council passed a new ordinance that bars employers from retaliating against employees who miss work for certain reasons related to COVID-19.  The ordinance, which became effective immediately after passage, imposes potentially significant financial penalties on employers who violate the ordinance.

The ordinance incorporates the definitions contained in the City of Chicago’s Minimum Wage and Paid Sick Leave Ordinance (Chapter 1-24-010 of the Municipal Code).  The ordinance applies to all employers with a business facility within the city’s boundaries, and generally to any employee who spends at least two hours working within the City limits in any two-week period.

Under the ordinance, employers may not retaliate against employees who:

  1. Stay at home, in compliance with public health orders, to minimize the transmission of COVID-19;
  2. Stay at home while sick with COVID-19 or experiencing COVID-19 symptoms in compliance with public health orders or the orders of the employee’s healthcare provider;
  3. Obey a quarantine or isolation order issued to the employee by public health officials or the employee’s healthcare provider;
  4. Obey an order issued by the Commissioner of Health “regarding the duties of hospitals and other congregate facilities”; or
  5. Care for someone subject to one of the orders described in points 1 through 3 above.

A violation of the ordinance may result in civil and/or administrative proceedings.  For example, the ordinance permits aggrieved employees to sue for: (a) reinstatement to the same or an equivalent position; (b) “damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place;” (c) “any other actual damages directly caused by the retaliatory action;” and (d) reasonable attorney’s fees and costs.

In addition, a violation of the ordinance is deemed retaliation under the Minimum Wage and Paid Sick Leave Ordinance, and authorizes the Chicago Commissioner of Business Affairs and Consumer Protection to take action against an employer to “cure the violation” and may “initiate an action in administrative hearings or a court of law against the Employer.”  Civil penalties set forth in the Minimum Wage Ordinance range between $500 and $1,000 for each offense. Each day that a violation continues is deemed a separate offense “to which a separate fine shall apply.”

The new ordinance does allow employers to assert as an affirmative defense to a violation of the ordinance that they “relied on a reasonable interpretation of an order and, upon learning of the violation” of the ordinance, cured the violation within 30 days.  The ordinance does not, however, define what would constitute a sufficient “cure” to avoid liability.

In view of the potentially significant civil fines and damages, employers with employees in Chicago should tread carefully when taking action against an employee who is absent from work for COVID-19 related reasons, even if the reasons for the potential action are unrelated to the pandemic.

Employers should also stay abreast of subsequent developments, as the ordinance allows the Commissioner of Public Health to promulgate implementing regulations. Such rules might be helpful in clarifying a number of questions left open by the ordinance.  These include whether or under what circumstances employers can require employees to provide medical documentation to show that they fall within one of the protected groups, and what kinds of steps are sufficient for an employer to “cure” a violation of the ordinance.

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