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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Wednesday, April 1, 2020

COVID-19 Webinar - Handling Leave Issues Under the FFCRA and EPSLA



Earlier this week, we conducted a webinar Q&A on Covid-19 issues - for those of you who could not log-on because we exceeded capacity or could not attend because of a conflict, you can access the recording of this webinar on our Quorum Forum Podcast website

Because of the high volume of questions that we are getting related to the implementation of the new federal legislation on sick leave and expanded FMLA, our Ancel Glink labor team will also be hosting a webinar on the Families First Coronavirus Response Act and the Emergency Paid Sick Leave Act on Thursday, April 2, 2020, at 12:00 p.m. 

This webinar will discuss:

  • What local governments does this apply to?
  • Which employees do these laws cover?
  • Under what circumstances do we have to pay employees under these laws?
  • How do these laws relate to our existing leave laws?
  • How does this apply to first responders?
  • How can we prevent abuses of these laws?
  • What are the best practices?
  • Frequently Asked Questions
Please join our labor and employment team as we walk through these issues and others related to local governmental obligations under these new laws.

Meeting Information

  • Thursday, April 2, 2020, at 12:00 p.m. Central Time
  • Meeting link: Please click here
  • Meeting number: 628 999 022
  • Password: HJmtD5PMY73
More ways to join

Join by video system

Join by phone

  • 1 (844) 992-4726 United States (Toll-Free)
  • 1 (408) 418-9388 United States (Toll)
  • Access code: 628 999 022
Global call-in numbers | Toll-free calling restrictions

https://www.webex.com/pdf/tollfree_restrictions.pdf

Tuesday, March 31, 2020

Conducting Meetings During Covid-19


One of the most frequently asked questions we have received from our local government clients during the Covid-19 shelter in place order relates to conducting "virtual" board and council meetings so we have shared our general thoughts on this topic below.


Q: Our corporate authorities have decided to meet over GoToMeeting for its next regular board meeting to comply with the Governor's stay at home order. Do we still have to meet in a manner that is open and convenient to the public?

A: Yes. Although Executive Order No. 2020-07 (issued on March 16, 2020) suspended some of the requirements for in-person attendance at meetings to allow electronic attendance, it did not suspend the Open Meetings Act generally. Meetings must still be held in a manner that is "open and convenient" to the public and there still needs to be an opportunity for public comment. Of course, public bodies still must comply with notice and agenda requirements as well.

During these strange days there will be changes from your normal meeting procedures, but public bodies still cannot conduct business privately. Consideration should be given to how the public can at least see or listen to the meeting virtually without needing to attend in person. Instructions for how members of the public can see, listen, and/or participate in meetings should be listed at the top of each agenda. In addition, instructions for how members of the public can submit public comments should also be listed on the agenda. That might include, for example, listing an email address or cell phone number where members of the public can send written comments in advance of or at the meeting that will be read at the meeting or identifying a call-in number of log-in information where the public can electronically participate in the meeting and provide public comments either through a chat function or through audio or video means during the public comment portion of the meeting. 

The key takeaway is that the Open Meetings Act is still in effect, and meetings of public bodies must still be open to the public, even those meetings that are "virtual" in nature where all or most of the public body is attending electronically.

Monday, March 30, 2020

Court Discusses the Prevailing Wage Act and Landscaping Work


Public bodies should take note of a recent appellate court decision interpreting the Prevailing Wage Act as it applies to landscaping work for public bodies and the importance of carefully drafting scope of work descriptions for projects that might be subject to the Prevailing Wage Act. Valerio v. Moore Landscapes, 2020 IL App (1st) 190185 (March 26, 2020).

In Valerio, 12 landscape laborers filed suit against Moore Landscapes for failing to pay them the prevailing wage for the tree planting work pursuant to its contracts with Chicago Park District. The trial court had dismissed the case but the appellate court reversed, finding that the plaintiffs allegations that the landscape work that plaintiffs were employed to do (planting trees and performing landscaping and related work for Chicago Park District) was subject to the Prevailing Wage Act was sufficient to survive a motion to dismiss.   
The Valerio decision reiterated the Department of Labor’s guidance concerning how public bodies do not comply with Section 4(a-1) of the Act by providing generalized statements that contractors must comply with all applicable laws or stating that contractors must comply with the Act to the extent it applies. Instead, public bodies are advised to specifically state whether or not a project is subject to the Act’s provisions.
With respect to landscaping, the rule about landscape maintenance not being subject to the Act remains intact (i.e., pruning a tree, tree removal, stump grinding, replacing a dead tree with a new one); likewise, landscape work is subject to the Act when it is a public works improvement project or part of one. In Valerio, the public works project was a new landscape with new trees and new hardscape work and, therefore, likely constituted a public work improvement project subject to the Act. 

Post Authored by Derke Price and Eugene Bolotnikov

Friday, March 27, 2020

Don't Forget to Check the Workplace Report Re: Paid Sick Leave and Emergency FMLA


Just a reminder to Municipal Minute readers to subscribe to or follow Ancel Glink's labor and employment law blog, the Workplace Report with Ancel Glink, for up-to-date information on employment-related issues relating to Covid-19. 

You can check out the blog here.  

You should pay particular attention to a few of our most recent blog posts that answer some of the most common questions regarding the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA), which you can find by clicking on the links below:



Thursday, March 26, 2020

Join Ancel Glink on March 31 for Coronavirus Q&A



On Tuesday, March 31, 2020 from 12:00 pm to 1:00 pm, join Ancel Glink attorneys to discuss local government coronavirus response in a web conference hosted by Ancel Glink's Quorum Forum podcast. State Rep. Chris Welch will review what the state’s ongoing efforts mean for you, while Keri-Lyn Krafthefer, Julie Tappendorf, and Matt DiCianni answer your questions about managing employees, open meetings, essential services, and the other COVID-19 issues facing local governments. 

Space is limited, so click here to register and claim your spot today!


Wednesday, March 25, 2020

DECO Provides Guidance on Essential Businesses During Shelter in Place


Many municipalities are fielding complaints and questions from residents and other business owners about certain businesses that remain open during the Governor's stay at home order. Police departments and other municipal staff are being asked by residents and others to enforce the Governor's order and require these businesses to close down. The issue turns on whether a business falls within the definition of an essential business or operation which is allowed to remain open or whether employees of a non-essential business are performing permissible "minimum basic operations."

We reported earlier this week on the Governor's order and listed some of the businesses that are considered "essential" and, therefore, allowed to remain open. Although the list is quite detailed, there are still questions as to whether a particular business falls within one of the listed categories.

This week, the Illinois Department of Commerce & Economic Opportunity (DECO), a state agency, issued guidelines called "Essential Businesses & Operations." These guidelines include the list of essential businesses and operations, as well as guidance on how essential businesses can and should operate. It also includes information to assist businesses in determining whether they might be essential. Finally, it includes a number of commonly raised questions about particular businesses, including car dealerships, personal trainers, technology companies, landscapers, and others. 

You can read DECO's guidance on Essential Businesses & Operations here.

In addition, a business can email DECO to obtain guidance on whether its business is considered essential under the Governor's order. 

DECO has also provided a flowchart for Essential Businesses here.

Tuesday, March 24, 2020

State Issues New COVID-19 Guidance to Local Liquor Control Commissions


Last week, in response to the COVID-19 global health crisis, Governor J.B. Pritzker issued an executive order requiring the closure of all bars and restaurants for on-premises consumption. To ease financial hardships imposed by the order and to promote social distancing, the Illinois Liquor Control Commission issued new guidance to local liquor commissioners across the state. The new guidance temporarily authorizes the delivery of alcoholic liquor subject to local approval, and defers to local liquor commissioners whether a municipality will allow “on-premises only retailers” to engage in off-premises sales.

Under these conditions, the Illinois Liquor Control Commission allows local liquor commissioners to permit temporary deliveries of alcoholic liquors. All retail licensees would be temporarily allowed to make curbside deliveries, home residential deliveries, and any other sale or delivery intended to promote social distancing. Local liquor control commissioners may also authorize retailers and temporary delivery licensees to use third party delivery services. However, all deliveries must be made in the original container and licensees may not sell or deliver pre-mixed cocktails normally intended for on-premises consumption. Deliveries made to a residence or to a curbside vehicle will require the delivery representative to observe the recipient at a safe social distance, and if necessary, require the examination of the recipient identification to ensure the recipient is over twenty-one. These temporary privileges are not generally allowed by law, and will be rescinded when the state terminates its COVID-19 emergency restrictions.

In additional guidance, the Illinois Liquor Control Commission announced it will accept the decision of a local liquor control commissioner to allow “on-premises only” retailers to sell alcoholic liquor off the licensed premises. License holders that normally have this privilege include combined (on/off consumption) retailers, off-premises only retailers, brew pubs, distilling pubs, brewers, and craft distillers. However, local authorities may now authorize an on-premises only retailer to make “package” or “to go” sales of alcoholic liquor for consumption off the licensed premises.

The Illinois Liquor Control Commission has also announced that renewal deadlines for state liquor licenses expiring March 31, April 30, and May 31 have been extended to July 31, 2020. As a result, state licenses will remain in effect even if the expiration date on its face indicates that it has expired.

Local liquor control commissioners can review the latest guidance on the Illinois Liquor Control Commission’s website, and consider authorizing these types of liquor sales that promote social distancing during the COVID-19 emergency.


By Daniel J. Bolin and Rain Montero

Monday, March 23, 2020

Details about Governor's Shelter in Place Order


Last week we reported on the Governor Pritzker's "Shelter in Place" Executive Order, which became effective on Saturday, March 21, 2020 at 5:00 pm. Today, we wanted to provide more details about what that EO means to local governments and their officials and employees and how it may affect your operations and activities, both professionally and personally. You can access the Governor's Order on the state's website here.

What is not allowed during the effective period of the order

The general purpose of the shelter in place order is to require individuals in Illinois to stay at home  during this 17 day period, with limited exceptions. So, non-essential businesses must cease operations, non-essential activities and public and private gatherings are prohibited, places of amusement and other operations must close, and non-essential travel must stop.

What is allowed during the effective period of the order

Although the purpose of the order is to keep people at home, there are certain operations and activities that are allowed to continue with appropriate social distancing. While we have summarized some of the key details below, note that this is not an exhaustive list of the permitted activities and operations. If you have any questions about a particular operation or activity, we recommend you review the order itself and consult with your attorney.

The exceptions to the stay at home mandate are identified as follows:

1. Essential Activities
2. Essential Government Functions
3. Essential Infrastructure
4. Essential Businesses and Operations
5. Minimum Basic Operations (non-essential businesses)
6. Essential Travel

1. Essential Activities

Individuals can leave their homes to receive health care and public health services, shop for groceries and necessary supplies, engage in outdoor exercise, or care for a family member, friend or pet, as well as engage in any of the activities or operations identified below.

2. Essential Government Functions

All functions provided by the state or any local government necessary to ensure the continuing operation of the government agencies or provide for or support the health, safety, and welfare of the public, and including contractors performing Essential Government Functions can continue. 
  • Each government must determine its Essential Government Functions and identify employees and contractors
  • All first responders, emergency management personnel, dispatchers, court personnel, law enforcement and corrections, hazardous materials responders, child welfare personnel, military, and other governmental employees working for or to support Essential Businesses and Operations are categorically exempt from the order
3. Essential Infrastructure

Individuals may leave their home to provide services or work to provide "essential infrastructure" which are listed in the order. For local governments, that means that employees and contractors can work on the following (not an exhaustive list):
  • public works construction
  • building management and maintenance
  • utility operations
  • road and public transportation
  • flood control
  • solid waste and recycling collection and removal, among others
4. Essential Businesses and Operations

Individuals may leave their home to provide services or work for any essential businesses and operations. The list of essential businesses is quite lengthy, so I encourage you to consult the list or with your attorney if you are unsure whether a particular business is lawfully operating.  Examples of some of these essential businesses include the following (not an exhaustive list):
  • health care and public health operations (excludes fitness centers, spas, salons, barber shops, and similar businesses)
  • grocery stores 
  • pharmacies and medical marijuana dispensaries
  • gas stations, auto repair (but not sales), and bike shops
  • banks and related financial institutions
  • hardware and supply stores
  • critical trades (plumbers, electricians, etc)
  • postal and other delivery services
  • laundry and dry cleaners
  • restaurants for off-premises consumption
  • supplies for work from home operations
  • transportation
  • professional services (legal, accounting, insurance, real estate)
  • day care for essential workers
  • hotels and motels
  • funeral services

5. Minimum Basic Operations (for non essential businesses)

Other businesses not identified as essential businesses in the order are required to close although employees can continue business from home. There are certain minimum basic operations, however, that are allowed during the order:
  • minimum necessary activities to maintain inventory, preserve plant and equipment, ensure security, process payroll and employee benefits, or related functions
  • minimum necessary activities to facilities employees working from home
6. Essential Travel

Travel is expected to cease unless the travel is necessary to engage in one of the above permitted activities (essential activities, essential business, etc).

Enforcement

The order expressly states that state and local law enforcement agencies can enforce the order under sections 7, 18, and 18 of the IEMA Act. The order itself does not contain a penalty for violations.

While there is authority to enforce the order at the local government level, it is important to note that Governor Pritzker made it clear that he expects residents and businesses to self-regulate rather than have aggressive enforcement by the police. Most local law enforcement agencies will look to compliance by residents and businesses as the goal (meaning verbal warnings for first violations before considering fines or other penalties).

Effect on Local Authority

The order specifically reserves the right of local governments to enact stricter regulations, including quarantine or isolation orders, where appropriate or necessary.

Friday, March 20, 2020

Breaking: Illinois Governor Issues Shelter in Place Order Due to Covid-19


As many anticipated, this afternoon Illinois Governor Pritzker issued a "shelter in place" order for the entire state of Illinois. In general terms, it means that people are expected to stay at home with limited exceptions for essential activities and essential business. The order takes effect at 5:00 pm on Saturday, March 21, 2020, and ends on April 7, 2020.

The order defines essential activities to allow residents to leave their homes to shop for groceries, go to the bank, laundromat, restaurant for take-out, or gas station, receive medical treatment, and care for the elderly or disabled. People can go outside to exercise. They can travel if it is to conduct essential business or activities. In all of these permissible interactions, however, social distancing precautions must be taken.

As a general rule, the order does not allow residents to go to work unless they work for essential businesses or operations. Examples of essential work include grocery store, hardware store, restaurant, and banking employees, essential infrastructure, health care, bankers, gas station employees, pharmacists, health care workers, critical trades (plumbers, electricians, etc), postal workers, delivery services, restaurants for consumption off-premises, transportation, professional services, daycare for essential workers, public works construction projects, and essential government operations, such as police, fire, and utilities, among others.  

You can read the Executive Order (Covid-19 EO No. 8) here

There are certain to be many questions about what type of work or activity is considered "essential" and exempt from the "stay at home" mandate. We also expect questions about enforcement which the order states will be done by state and local law enforcement officials. We plan to provide a more detailed summary of the EO and its provisions on Monday so stay tuned.

What Powers Do Governments Have Related to Isolation and Quarantine and Are They Enforceable?


As Illinois residents and businesses prepare for a possible state-wide "shelter in place" order, we have been receiving a number of questions related to the scope of government’s powers related to a shelter in place order or a quarantine, as well as related to the enforceability of such orders, so we put together a summary of the applicable laws.

In addition to serving as medical functions, isolation and quarantine also are “police power” functions, derived from the right of the state to take action affecting individuals for the benefit of society.

Federal Government Authority

The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states. The authority for carrying out these functions on a daily basis has been delegated to the Centers for Disease Control and Prevention (CDC).Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases. As part of its federal authority, CDC routinely monitors persons arriving at U.S. land border crossings and passengers and crew arriving at U.S. ports of entry for signs or symptoms of communicable diseases. When alerted about an ill passenger or crew  member by the pilot of a plane or captain of a ship, CDC may detain passengers and crew as necessary to investigate whether the cause of the illness on board is a communicable disease.

State, Local, and Tribal Law

In the United States, state police power comes from the Tenth Amendment to the Constitution, which gives states the rights and powers "not delegated to the United States." States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public, including the power to protect the public and public health from the pandemics. To control the spread of disease within their borders, states have laws to enforce the use of isolation and quarantine. These laws can vary from state to state and can be specific or broad. In some states, local health authorities implement state law. In most states, breaking a quarantine order is a criminal misdemeanor. Tribes also have police power authority to take actions that promote the health, safety, and welfare of their own tribal members. Tribal health authorities may enforce their own isolation and quarantine laws within tribal lands, if such laws exist.

Illinois—Department of Public Health Act

Department of Public Health Authority — 20 ILCS 2305/2(a)

In Illinois, the State Department of Public Health has general supervision of the interests of the health and lives of the people of the State. It has supreme authority in matters of quarantine and isolation,  and may declare and enforce quarantine and isolation when none exists, and may modify or relax quarantine and isolation when it has been established.

The provisions of the Illinois Administrative Procedure Act are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department of Public Health under this Act, except that Section 5-35 of the Illinois Administrative Procedure Act relating to procedures for rule-making does not apply to the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion.

All local boards of health, health authorities and officers, police officers, sheriffs and all other officers and employees of the state or any locality shall enforce the rules and regulations so adopted and orders issued by the Department pursuant to this Section.

Department Authority to Order Quarantine - 20 ILCS 2305/2(b) & 20 ILCS 2305/2(c)

20 ILCS 2305/2(b): Subject to the provisions of subsection (c), the Department may order a person or group of persons to be quarantined or isolated or may order a place to be closed and made off limits to the public to prevent the probable spread of a dangerously contagious or infectious disease, including non-compliant tuberculosis patients, until such time as the condition can be corrected or the danger to the public health eliminated or reduced in such a manner that no substantial danger to the public's health any longer exists.

20 ILCS 2305/2(c): The Department may, however, order a person or a group of persons to be quarantined or isolated or may order a place to be closed and made off limits to the public on an immediate basis without prior consent or court order if, in the reasonable judgment of the Department, immediate action is required to protect the public from a dangerously contagious or infectious disease.

Department Enforcement Authority When Local Authorities Neglect or Refuse to Act - 20 ILCS 2305/2(a)

The Department of Public Health shall investigate the causes of dangerously contagious or infectious diseases, especially when existing in epidemic form, and take means to restrict and suppress the same, and whenever such disease becomes, or threatens to become epidemic, in any locality and the local board of health or local authorities neglect or refuse to enforce efficient measures for its restriction or suppression or to act with sufficient promptness or efficiency, or whenever the local board of health or local authorities neglect or refuse to promptly enforce efficient measures for the restriction or suppression of dangerously contagious or infectious diseases, the Department of Public Health may enforce such measures as it deems necessary to protect the public health, and all necessary expenses so incurred shall be paid by the locality for which services are rendered.

Department Supplementary Power Clause - 20 ILCS 2305/2(j)

This Section shall be considered supplemental to the existing authority and powers of the Department and shall not be construed to restrain or restrict the Department in protecting the public health under any other provisions of the law.

Penalties - 20 ILCS 2305/8.1

Whoever violates or refuses to obey any rule or regulation of the Department of Public Health shall be deemed guilty of a Class A misdemeanor. The Director of Public Health shall institute prosecutions and proceedings for violation of the rules and regulations adopted by the Department of Public Health, provided that he may designate a local board of health or local health officer to institute prosecutions or proceedings for violation of those rules and regulations adopted by the Department. Each State's Attorney shall prosecute all persons in his county violating or refusing to obey the rules and regulations of the Department of Public Health. All fines or judgments collected or received shall be paid to the County Treasurer of the county in which prosecution is conducted.

Illinois Administrative Code

77 Ill. Adm. Code 690.10—Definitions

“Certified Local Health Department" − A local health authority that is certified pursuant to Section 600.210 of the Certified Local Health Department Code (77 Ill. Adm. Code 600).

"Local Health Authority" − The health authority (i.e., full-time official health department, as recognized by the Department) having jurisdiction over a particular area, including city, village, township and county boards of health and health departments and the responsible executive officers of those boards, or any person legally authorized to act for the local health authority.  In areas without a health department recognized by the Department, the local health authority shall be the Department.

77 Ill. Adm. Code 690.1305—Department of Public Health Authority

(f) The Department has primary jurisdiction to isolate or quarantine persons or groups of persons if a dangerously contagious or infectious outbreak has affected more than one county or has multi-county, statewide or interstate public health implications.  If isolation is imposed by the Department, the certified local health department may not alter, amend, modify, or rescind any Department order without the express permission of the Department.  The Department may rescind any order issued by a certified local health department if the need arises and shall notify the local authority of that action.

77 Ill. Adm. Code 690.1310—Local Health Authority

a) All local boards of health, health authorities and officers, police officers, sheriffs and all other officers and employees of the State or any locality shall enforce the rules in this Subpart and orders issued by the Department pursuant to Section 2 of the Act. (Section 2(a) of the Act)

b) This Subpart applies to all local health departments certified pursuant to the Certified Local Health Department Code (77 Ill. Adm. Code 600).

c) In accordance with Section 2310-15 of the Department of Public Health Powers and Duties Law, the Department has the general authority to delegate to a certified local health department, for the purpose of local administration and enforcement, the duties that the Department is authorized to enforce. Due to the need for immediate action to respond to a threat of a dangerously contagious or infectious disease, the Department delegates its powers to issue orders for isolation, quarantine or closure; physical examinations and tests; collection of specimens; administration of vaccines, medications and treatments; and observation and monitoring and to issue and enforce orders to certified local health departments within the State of Illinois.

77 Ill. Adm. Code 690.1315—Responsibilities and Duties of the Certified Local Health Department

a) The certified local health department shall, in coordination with the Department, administer and enforce the standards set forth in this Subpart.

b) The certified local health department shall have the authority to:

1) Investigate any case or suspected case of a reportable communicable disease or condition; and

2) Institute disease control and contamination control measures, including physical examination, testing, counseling, treatment, vaccination, decontamination of persons, isolation, quarantine, inspection and closure of buildings and facilities, or other measures considered necessary.

f) In consultation with local health care providers, health facilities, emergency management personnel, law enforcement agencies, animal control, schools, the local judicial system, and any other entity that the certified local health department considers necessary, the certified local health department shall establish plans, policies, and procedures for instituting and maintaining emergency measures necessary to prevent the spread of a dangerously contagious or infectious disease or contamination.

77 Ill. Adm. Code 690.1340—Enforcement

a)  An order issued by the Department, a certified local health department or the circuit court in accordance with this Subpart shall be enforced by all local and statewide law enforcement, and all other officers and employees of any political subdivision within the jurisdiction of the certified local health department.

b) The Department or certified local health department may request the assistance of police officers, sheriffs, and all other officers and employees of any political subdivision within the jurisdiction of the Department or certified local health department to apprehend, hold, transport, quarantine or isolate a person who is subject to an order if that person is uncooperative or unwilling to adhere to prescribed treatment or medical instruction of the Department or certified local health department.

77 Ill. Adm. Code 690.1415—Penalties
  
b) A public health order issued by a certified local health department under this Subpart is equivalent to, shall be enforced as, and carries the same penalty as an order issued by the Department directly.

Local Emergency Powers—Quarantine and Isolate

Chicago and Oak Park recently issued a “Shelter-in-place” Order. Both Chicago and Oak Park have certified Public Health Departments and their Public Health Directors exercised their authority under 20 ILCS 2305/2 of the Illinois Department of Public Health Act and the Illinois Administrative Code provisions above, to issue such orders.

Cities or villages with home rule authority could have existing laws in effect, or adopt laws, which would empower their Public Health Director to make “reasonable rules, regulations and orders . . . as may from time to time be deemed necessary for the preservation and improvement of the public health and for the suppression of disease” in cases of emergency. Perhaps such orders can be exercised by a mayor or village president under an emergency powers ordinance.

Governor’s Powers—Generally

The Illinois Constitution, Article V, Section 8, states that "The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.” 

Using his constitutional authority, Governor Pritzker declared a state of emergency related to COVID-19, and he has issued several executive orders related to the management of COVID-19.  He is given the power to make such a declaration and take such action under the Illinois Constitution and under the Illinois Emergency Management Agency Act, 20 ILCS 3305/1.

Illinois Emergency Management Agency Act

Emergency Powers of Governor

In the event of a disaster, as defined in 20 ILCS 3305/4, the Governor may, by proclamation declare that a disaster exists. 20 ILCS 3305/7. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the emergency powers delineated in the Act, including, but not limited to: (6) recommending the evacuation of all or part of the population from any stricken or threatened area within the State if the Governor deems this action necessary; (8) controlling ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein. Accordingly, the preceding statutory authority purports to empower the Governor to effectuate a quarantine.

Also, under 20 ILCS 3305/10(d), the Governor is empowered to determine which municipal corporations, other than those specified in paragraph (c) of this Section, need emergency services and disaster agencies of their own and require that they be established and maintained. The Governor shall make these determinations on the basis of the municipality's disaster vulnerability and capability of response related to population size and concentration.

Furthermore, the Governor is authorized to prepare a comprehensive plan and program for the emergency management of this State, which shall both be integrated into and coordinated with emergency management plans and programs of the federal government and of other states whenever possible and which plan and program may include: (f) furnishing assistance to political subdivisions in designing emergency operations plans. 20 ILCS 3305/6(c)(2)(f).

In accordance with 20 ILCS 3305/10(a), each political subdivision within this State shall be within the jurisdiction of and served by the Illinois Emergency Management Agency and by an emergency services and disaster agency responsible for emergency management programs. Since the Governor has general direction and control of the Illinois Emergency Management Agency and shall be responsible for the carrying out of the provisions of this Act (20 ILCS 3305/6(a)), the Governor appears statutorily authorized to assist political subdivisions during emergencies.

Local Disaster Declarations by Municipalities

The principal executive officer of a municipality, or of a township located in a county having a population of more than 2,000,000 (20 ILCS 3305/10), may make a local disaster declaration pursuant to 20 ILCS 3305/11(a).

The effect of such a declaration is to activate the emergency operations plan of that political subdivision and to authorize the furnishing of aid and assistance under that plan. 20 ILCS 3305/11(b). This is only helpful if a particular local government has adopted an emergency operations plan.

Emergency Services and Disaster Plans

Each municipality with a population over 500,000 shall maintain an emergency services and disaster agency which has jurisdiction over and serves the entire municipality. A municipality with a population less than 500,000 may establish, by ordinance, an agency or department responsible for emergency management within the municipality's corporate limits. 20 ILCS 3305/10(c).

Each emergency services and disaster agency shall prepare an emergency operations plan for its geographic boundaries that complies with planning, review, and approval standards promulgated by the Illinois Emergency Management Agency. The Illinois Emergency Management Agency shall determine which jurisdictions will be required to include earthquake preparedness in their local emergency operations plans.20 ILCS 3305/10(g).

Moreover, in carrying out the provisions of this Act, 20 ILCS 3305/10(j) authorizes each political subdivision to enter into contracts and incur obligations necessary to place it in a position effectively to combat the disasters as are described in Section 4, to protect the health and safety of persons, to protect property, and to provide emergency assistance to victims of those disasters. If a disaster occurs, each political subdivision may exercise the powers vested under this Section in the light of the exigencies of the disaster and, excepting mandatory constitutional requirements, without regard to the procedures and formalities normally prescribed by law pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the purchase of supplies and materials, and the appropriation, expenditure, and disposition of public funds and property.

Illinois Municipal Code—Mayoral Extraordinary Powers During Emergencies—65 ILCS 5/11-1-6

Under the Illinois Municipal Code, the corporate authorities of each municipality may by ordinance grant to the mayor the extraordinary power and authority to exercise, by executive order, during a state of emergency, such of the powers of the corporate authorities as may be reasonably necessary to respond to the emergency. Such ordinance shall establish standards for the determination by the mayor of when a state of emergency exists, and shall provide that the mayor shall not exercise such extraordinary power and authority except after his signing, under oath, a statement finding that such standards have been met, setting forth facts to substantiate such findings, describing the nature of the emergency, and declaring that a state of emergency exists. Such statement shall be filed with the clerk of the municipality as soon as practicable. A state of emergency, declared as provided in this section, shall expire not later than the adjournment of the first regular meeting of the corporate authorities after the state of emergency is declared.

Many municipalities have adopted such ordinances to permit mayors to exercise broad powers in all different types of emergencies.

Park Districts, Libraries and Townships

Unlike for the State, municipalities and townships that are in counties with populations in excess of 2,000,000 in population, there are no specific statutes that give park districts, libraries and townships the ability to declare a state of emergency. 

Townships do possess expanded powers to provide emergency financial assistance and household assistance for 90 days after a presidential declaration of a major disaster or emergency.  There are specific rules about the expanded use of general assistance funds in such situations.  However, townships cannot use State funds to provide relief, but they may be able to provide relief to families in need without regard to traditional eligibility requirements pursuant to 305 ILCS 5/6-9 and 6-10.

Local Police Enforcement

The legal authority above, specifically 77 Ill. Adm. Code 690.1315 and 77 Ill. Adm. Code 690.1340 appears to be a legitimate legal basis for the exercise of police authority. The extent to which police departments exercise these powers is a matter of local discretion.
  
Who Is in Charge During Quarantine and Isolation?

The federal government
     Acts to prevent the entry of communicable diseases into the United States. Quarantine and isolation may be used at U.S. ports of entry.
         Is authorized to take measures to prevent the spread of communicable diseases between states.
         May accept state and local assistance in enforcing federal quarantine.
         May assist state and local authorities in preventing the spread of communicable diseases.

State, local, and tribal authorities
         Enforce isolation and quarantine within their borders.

It is possible for federal, state, local, and tribal health authorities to have and use all at the same time separate but coexisting legal quarantine power in certain events. In the event of a conflict, federal law is supreme.

Federal Enforcement

If a quarantinable disease is suspected or identified, CDC may issue a federal isolation or quarantine order. Public health authorities at the federal, state, local, and tribal levels may sometimes seek help from police or other law enforcement officers to enforce a public health order. U.S. Customs and Border Protection and U.S. Coast Guard officers are authorized to help enforce federal quarantine orders. Breaking a federal quarantine order is punishable by fines and imprisonment. Federal law allows the conditional release of persons from quarantine if they comply with medical monitoring and surveillance. In the rare event that a federal order is issued by CDC, those individuals will be provided with an order for quarantine or isolation. 

Specific Federal Laws and Regulations Governing the Control of Communicable Diseases


Post Authored by Keri-Lyn Krafthefer & Eugene Bolotnikov, Ancel Glink




From the Workplace Report: Familes First Coronavirus Response Act


Ancel Glink's labor & employment law blog "The Workplace Report with Ancel Glink" posted an article summarizing the Families First Coronavirus Response Act which was just passed by Congress and signed by the President. That law becomes effective April 2, 2020, and applies to employers with fewer than 500 employees.

You can visit The Workplace Report blog here. We've also reposted the article below:

FAMILIES FIRST CORONAVIRUS RESPONSE ACT BECOMES LAW


Many clients have been asking about “emergency sick leave” which had been mentioned in various press conferences, but until last night, not finalized. On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The new law becomes effective on April 2, 2020, and covers employers with fewer than 500 employees. The following is a summary of changes and expansion of the Family Medical Leave Act (“FMLA”) and the new Emergency Paid Sick Leave Act that will both become effective with the new law. Please note that this new law gives the U.S. Secretary of Labor the authority to issue regulations and guidance regarding the new laws. That has not occurred yet, but we will be closely monitoring any additional developments. The following is a summary of what we know today. Finally, the new law contains tax credit provisions for private employers.

Emergency Paid Sick Leave Act

In summary, this statute is new and it requires all employers, including all government employers, with fewer than 500 employees to provide all of their employees with up to 2 weeks of paid sick leave for qualifying COVID-19 related absences. This law will take effect on April 2, 2020, and will extend through December 31, 2020. The leave will be available for immediate use and may be used by any employee regardless of how long they have been employed.

Many of our clients employ police and firefighter/paramedics. These employees will be considered “emergency responders” under the Act, which contains a provision that allows employers to exclude these employees from eligibility under the Act. The Act also provides the U.S. Secretary of Labor with the authority to issue regulations that will exempt these employees. That has not happened as of this posting. We will continue to monitor this issue and update accordingly. We believe that this provision is intended to apply to childcare provisions of the Act and not a situation wherein the emergency responder becomes infected with the virus or has to care for a sick family member.

The reasons for using emergency paid sick leave are as follows, and fall into two categories:

Employee’s Own Illness
  • The employee has symptoms of COVID-19 and is seeking a diagnosis;
  • The employee has been told by a medical provider to self-quarantine;
  • The employee is subject to a federal, state or local quarantine or “shelter in place” order (we do not have guidance on how expansively this may be interpreted, so stay tuned for updates);
Necessary Care for Others
  • The employee is caring for an individual subject to government quarantine, isolation order or who has been advised by a medical provider to self-quarantine;
  • The employee is caring for a child because of a virus related school closure or unavailability of childcare (daycare closures, park district closures, etc.)
  • The employee is experiencing any other “substantially similar condition” as specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretaries of Treasury and Labor (if this sounds overly vague, it is and we await clarification on what exactly it is supposed to mean – as written it is an alarmingly unclear “catch-all” provision)
Full-time employees are eligible for up to 80 hours of leave. Part-time employees' eligibility should be calculated on the average number of hours worked in a two week period.

The new law caps pay. If the absence is for the employee him/herself, the employee gets his/her actual rate of pay or the applicable minimum wage, whichever is greater, with a cap of $511 per day or $5,110 total. For the care of others, the cap is 2/3 the employee’s minimum regular rate of pay or the applicable minimum wage, whichever is greater, with a cap of $200 per day or $2,000 total.

The leave will not carry over nor can it be “banked” for use beyond the expiration date of December 31, 2020. Employers cannot require employees to use other paid time off (vacation, sick, personal, comp, etc.) prior to the emergency sick leave provided by this Act. This paid leave is in addition to all other forms of paid leave offered by an employer by policy, collective bargaining agreement (“CBA”) or both. The new law has notice provisions, but that may be “window dressing” given the circumstances surrounding this virus. This is not like elective surgery, so we advise being very careful about denying leave under this Act based upon not receiving “reasonable” notice.

Employees who use this leave must return to work as soon as the need for the leave resolves (employee tests negative for the virus, school is back in session, etc.). Employers cannot require employees to find replacements before allowing them to use this leave. Retaliation and discrimination for using this leave are prohibited and violations will be penalized. The penalties will be considered minimum wage violations under the FLSA and shall include lost wages, liquidated damages and attorney’s fees and costs. If the violation is intentional, a $10,000 fine may be assessed and repeat offenders may be sentenced to up to 6 months in prison (federal prison we presume) after a prior conviction.

Social Security taxes do not apply to emergency sick leave under this Act for purposes of calculating Social Security taxes owed by the employer. FMLA definitions will apply for terms such as son or daughter and health care provider.

In summary, this is broad legislation intended to provide pay for COVID-19 related work absences relating to the employee’s illness, the need to care for a family member, government-ordered quarantines/lockdown and COVID-19 related childcare issues. It is NOT 2 weeks of paid leave to stay home because an employee does not want to come to work or is afraid to come to work based upon fear of contracting the virus.

Expansion of the FMLA

The expansion of the FMLA requires employers of 500 or fewer employees and government employers to provide 12 weeks of job-protected leave to all full-time, part-time and temporary employees who have been on the job for at least 30 days. There is no minimum hour requirement for this leave. The new law provides for small business exemptions for employers with fewer than 50 employees, but it does not specifically reference small “government employers,” so, at this time, the expansion appears to apply to all government employers. There is a provision regarding exclusions from the expansion for emergency responders (police and fire), but the Secretary of Labor was given authority to promulgate rules exempting such employees, so we will update this information when and if that happens.

The added qualifying reason for this leave is that the employee is forced to care for a child under 18 because of a school closure or the unavailability of childcare due to COVID-19. The first 10 days of this leave are supposed to be unpaid, but it is possible that the Emergency Paid Sick Leave Act may be used in this instance as well as any other form of paid time off at the employee’s discretion. The employer cannot force the employee to use emergency paid sick leave or other paid benefit time if they choose not to do so. After the first 10 days of “unpaid” leave (if the employee does not substitute paid leave), employees must be paid 2/3 their regular rate of pay using the same formulas set forth above for emergency paid sick leave. This paid leave is capped at $200 per day and $10,000 in total.

Employers with 25 or more employees must return the employee to the same or a substantially similar position using existing FMLA rules. Employers with less than 25 employees may not have to return employees to work, but conditions apply and all conditions must be met to deny return to work. The conditions are summarized below:
  • The employee took leave to care for a child based upon school closure or the unavailability of childcare due to COVID-19; and
  • The employee’s position no longer exists because of economic conditions occasioned by COVID-19; and
  • The employer makes “reasonable efforts” to restore the employee to their position; and
  • The reasonable efforts fail; and
  • The employer tries to contact the employee if an equivalent position becomes available for one year starting on the earlier of: (1) the date the qualifying need related to COVID-19 ends (school goes back in session) or (2) a date 12 weeks after the employee’s leave started. 

Remember, if reinstatement is denied, ALL of the elements above must be satisfied.

As with the Emergency Paid Sick Leave Act, wages under the FMLA expansion for COVID-19 are not subject to Social Security taxes, and as with the FMLA, discrimination and retaliation are prohibited. Violations of the FMLA as expanded shall be handled the same as violations of the FMLA.

Conclusion

We recognize that these are difficult times and our clients have many concerns. We also recognize that emergency measures, including emergency legislation such as those summarized above, are often moving targets. Rest assured that we will continue to monitor new legislation as well as new regulations that may affect our clients. If you have any questions, please do not hesitate to contact us, and most importantly be well and stay safe.