Guidance For Employers and Employees on Workers' Rights and Safety
Federal and Illinois law require employers to maintain a safe and healthy workplace. As Illinois continues through the Restore Illinois plan and regional mitigation measures, employers and employees1 are navigating difficult questions about how to maintain a safe and healthy workplace during the COVID-19 pandemic. COVID-19 also has raised other employment-related questions involving issues such as pay and benefits, leave, and eligibility for unemployment insurance.
This guidance is intended to help both employers and employees educate themselves about minimum required workplace safety requirements, as well as best practices to promote a safe and well-functioning workplace during the COVID-19 pandemic, and to provide guidance on some frequently asked questions about COVID-19 and the workplace.
Minimum Workplace Safety Requirements
Employers are required to follow the Governor’s Executive Orders. The Illinois Department of Public Health (IDPH) and Illinois Department of Commerce and Economic Opportunity (DCEO) have also published guidelines and requirements for employers to follow in order to maintain a safe workplace during the pandemic. All employers are required to:
- Continue to evaluate which employees are able to work from home and are encouraged to facilitate remote work when possible;
- Ensure that employees practice social distancing and wear face coverings when social distancing is not always possible. Employers should provide face coverings at no charge to employees who are not able to maintain a minimum 6-foot social distance at all times;
- Ensure that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing;
- Ensure that all visitors (customers, vendors, etc.) to the workplace can practice social distancing. When maintaining a 6-foot social distance may not always be possible, visitors should be encouraged to wear face coverings; and
- Prominently post the guidance from IDPH and the Office of the Illinois Attorney General regarding workplace safety during the COVID-19 emergency.
Best Practices to Promote Workplace Health and Safety
The following measures are not currently legal requirements, but steps employers are encouraged to take to promote a healthy work environment and to limit the spread of COVID- 19.
If it is not feasible for employees to work from home, employers should consider what arrangements can be made to limit the number of employees who are together in the workplace at any one time. For example, employers should consider staggering shifts or designating groups of employees to consistently work on the same days and times as each other.
To promote scheduling consistency, employers should give employees the opportunity to provide input on their preferred schedule.
Workplace Safety Plans
Employers should develop a workplace safety plan as a way of identifying and addressing risks.
Employees are an integral part of an effective workplace safety plan as they are often in the best position to identify hazards in a particular area or job. To encourage employee input and feedback on safety and health matters, employers should consider designating one or more employees to be points of contact for employees with health or safety concerns or, in larger workplaces, creating a workplace safety and health committee made up of employee representatives from a variety of roles within the business.
In workplaces where employees are represented by a union, union representatives can also participate in workplace safety planning.
Employers will want to ensure that all workers who perform work on-site, including employees, temporary employees and independent contractors, receive workplace safety training that includes training on COVID-19 symptoms and how to self-assess for symptoms. Additionally, employers should conduct temperature and/or symptom screenings of all employees prior to their entry to the workplace. An example of an employee symptom screening form can be found on IDPH’s website.
Worker safety training and the corresponding written materials should be available in a language spoken by employees and accessible to employees with a range of education levels.
In order to promote their use, employers should make face coverings and other protective equipment available at no charge to employees.
Employees should be instructed to stay home when sick and to follow the guidance of public health authorities if they have been exposed to or in close contact with someone diagnosed with COVID-19.
Employers should not implement or keep in place any bonus or incentive payments for work attendance that could encourage employees to work while sick or, alternately, any disciplinary programs that penalize employees for taking time off.
Employers should clearly explain paid leave policies and make employees aware they may be eligible for benefits if they are sick or live in the same household as someone who is diagnosed with COVID-19.
Anti-Discrimination and Anti-Retaliation Laws Applied to COVID-19
State and federal laws require employers to maintain a workplace free of discrimination and harassment, and to ensure that employees are treated equally regardless of age, disability, sex, race, national origin, religion, or any other protected category. These laws also protect employees from retaliation when they engage in conduct to oppose discrimination or harassment, or when they raise safety and health concerns with their employer or coworkers.
Protections from Discrimination and Harassment
Under the Illinois Human Rights Act (IHRA), employees are protected from discrimination and harassment in their employment for reasons including, but not limited to, their actual or perceived disability, age, race, or national origin. The Illinois Department of Human Rights (IDHR) investigates charges of discrimination, harassment, and retaliation filed under the IHRA. To begin the process of filing a charge, individuals should complete and submit the Complainant Information Sheet located on IDHR’s website.
Employers may not require employees to disclose if they are at higher risk for COVID- 19 or have a health condition. However, if possible, they must try to make reasonable accommodations for an employee who requests one. Requests for accommodations should be evaluated and resolved on a case-by-case basis.
All workplace safety policies, including required face coverings, must be applied and enforced equally for all employees in the workplace, except for those employees who have informed the employer of a medical condition or disability that prevents them from safely wearing a face covering. Further guidance concerning the use of face coverings is available on IDHR’s website.
Employers may require an employee to take a COVID-19 test or submit a medical verification clearing them to return to work after they have experienced symptoms associated with COVID-19, been in close contact with an individual who has been diagnosed with COVID-19, or tested positive for COVID- 19, been sick, or experienced COVID-19 related symptoms. Per guidance from the U.S. Equal Employment Opportunity Commission (EEOC), employers may not require a COVID-19 antibody test before allowing employees to return to work. If an employee tests positive for COVID- 19, their employer should inform other employees in the workplace who may have been exposed. The employer may not disclose the name of individual employee(s) who test positive.
Federal employment laws, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), also protect employees from discrimination and harassment. Guidance regarding the ADA and the COVID-19 pandemic issued by the EEOC is available here.
Protections from Retaliation
Employers are prohibited from retaliating against an employee for raising concerns about COVID-19, or their overall safety and health, either internally or to a government agency. Employers are further prohibited from retaliating against an employee when the employee discloses information that they have reasonable cause to believe is a violation of a state or federal law, rule, or regulation. Specific federal, state, and local protections against retaliation include:
- The IHRA prohibits an employer from retaliating against an employee who opposes unlawful discrimination or harassment (e.g., filing a charge or complaint; testifying, assisting or participating in an investigation, proceeding or hearing; or requesting a reasonable accommodation). Employees who believe that they have been retaliated against for opposing unlawful discrimination can file or amend a charge using the Complainant Information Sheet on IDHR’s website.
- The federal Occupational Safety and Health Act of 1970 protects private sector employees who raise safety and health concerns with their employer or a government agency. Employees who believe they have been retaliated against may file a complaint with the federal Occupational Safety and Health Agency (OSHA). (Please note that employees generally only have 30 days to file a complaint.)
- The Illinois Occupational Safety and Health Act of 2015 protects state and local government employees who raise safety and health concerns with their employer or a government agency. Public employees who believe they have been retaliated against may file a complaint with the Illinois Occupational Safety and Health Agency (IL OSHA).
- The Illinois Whistleblower Protection Act, 740 ILCS 174, prohibits retaliation against an employee for disclosing information they believe violates a state or federal law, rule, or regulation.
- The city of Chicago prohibits retaliation, including termination, against employees who work within the city for obeying a stay-at-home, quarantine, or self-isolation order. M.C.C.1-24. Chicago-based employees may file a complaint with the Chicago’s Office of Labor Standards if they believe they have been retaliated against in violation of this ordinance.
- Section 7 of the National Labor Relations Act (NLRA) protects employees’ ability to engage in “protected concerted activity for mutual aid or protection” in both union and non-union settings. Such protected concerted activity generally includes employees talking to one another about working conditions or workplace safety, or engaging in actions, such as petitions or walkouts, to try to improve safety conditions.
Frequently Asked Questions for Employers and Employees
Can an employer require an employee to go home if the employee is exhibiting COVID- 19 symptoms?
Yes. Employees who exhibit symptoms of COVID-19 can be asked to leave the workplace and stay at home until it has been 10 days since their symptoms first appeared and 24 hours with no fever (without the use of fever-reducing medications) and other symptoms of COVID-19 are improving.3 An employee with a medical condition that causes symptoms similar to COVID-19 may provide their employer with medical documentation that their symptoms are due to a different condition in order to continue reporting to work.
Can an employer require employees to wear face coverings at work?
Yes. Per the Governor’s Executive Orders, an employer can require employees to use protective gear, including masks or face coverings. Employees who have a medical condition or disability that prevents them from safely wearing a face covering may seek a reasonable accommodation from these requirements. More information on the use of face coverings is available on the Illinois Department of Human Rights website.
Can employers implement temperature screenings?
Yes. The EEOC has issued guidance stating that due to the acknowledgment of COVID-19 community spread by the Centers for Disease Control and Prevention (CDC) and state and local public health authorities, employers may take employees’ temperatures. As with other medical information, employers must maintain the confidentiality of employee temperatures and any other symptoms.
If an employee has been quarantined at home, may their employer require a doctor’s note or a COVID-19 test before they return to work?
Yes. Employers are responsible for maintaining a safe and healthy workplace and there is nothing in Illinois or federal law that prohibits an employer from requiring a doctor’s note or COVID-19 test before an employee returns to work. COVID-19 diagnostic testing should generally be covered by private insurance and available at no cost to individuals who do not have insurance under federal reimbursement programs or at a community based testing site. Employers should recognize that health care providers may be extremely busy and not able to provide the requested documentation in a timely manner.
How much information can an employer request from an employee who calls in sick?
Employers have an obligation to ensure a safe and healthy workplace. During the COVID- 19 pandemic, employers may ask employees who work on-site if they have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19, including fever, chills, cough, and shortness of breath. However, employers are required to ensure the confidentiality of any medical information provided by an employee. Employers may not ask about an employee’s family members’ health information, but may ask employees whether they have had contact with anyone who has been diagnosed with, or is experiencing symptoms of, COVID-19.
Are employees who have COVID-19 or are experiencing COVID-19 symptoms entitled to paid time off? What about employees who are recommended to self-quarantine by a doctor or employer due to potential exposure? What about employees who need to take time off to care for a family member for reasons related to COVID-19?
Employees in all of these situations may be entitled to paid time off under their employer’s existing leave program as well as under the federal Families First Coronavirus Response Act (FFCRA), public law 116-127, or a local paid sick leave ordinance. The Office of the Illinois Attorney General has issued more detailed guidance on the FFCRA and paid sick leave.
What should an employer do if an employee reports COVID-19 symptoms or tests positive for COVID-19?
If an employee reports having any COVID-19 related symptoms, the employer should encourage the employee to contact their health care provider. If two or more employees report having COVID-19 related symptoms or test positive for COVID-19, the employer must notify their local health department within 24 hours of being informed of the presence of COVID-19 symptoms or positive test results. The employer should also conduct contact tracing, notify all employees who were in close contact with the sick employee as soon as possible, and allow those employees to quarantine for 14 days. The employer should also notify its employees that there has been a confirmed COVID-19 case in the workplace, while keeping the name of the sick employee confidential.
Employers should never require employees or other workers at the workplace to report to work while experiencing COVID-19 symptoms.
How should employers sanitize a facility where an employee with COVID-19 worked?
At a minimum, employers should follow CDC guidelines for cleaning and disinfecting facilities with cases of COVID-19. Employers should close off areas used by the person who is sick and, if possible, open windows and doors to increase air circulation in the area. Employers should wait 24 hours before cleaning or disinfecting where feasible, and proceed to disinfect the area using proper precautions, such wearing gloves and masks. Employers should also clean and disinfect all areas used by the person who is sick, such as offices, bathrooms, common areas, shared equipment, etc. Once areas used by the person who is sick have been appropriately disinfected, they can be opened for use.
When should employees presenting COVID-19 symptoms return to work?
Generally, isolation can be discontinued when all three conditions are met: 10 days have passed since symptoms started, no fever for at least 24 hours without the use of fever- reducing medications, and other symptoms are improving.
What should an employee do if they test positive for COVID-19?
An employee who tests positive should make their employer aware of the positive test. Employees should not come to work, nor should their employer require them to come to work if they have had a positive test or are experiencing COVID-19 symptoms.
What should an employee do about work while awaiting test results?
An employee experiencing symptoms of COVID-19 should seek a test, notify their employer, and stay home while awaiting tests results. An employee who is not experiencing symptoms but was tested due to close contact with someone with symptoms or a COVID-19 diagnosis should follow the guidance of public health authorities and any potential work restrictions, until they receive their test results.
Can an employee refuse to go to work if they feel at risk for contracting COVID-19?
There is currently no state or federal law that provides job protection to a healthy employee who refuses to work out of fear of contracting COVID-19. However, employees may be entitled to use vacation or other paid time off in accordance with their employer’s established leave program. Under the federal Occupation Safety and Health Act of 1970, employees who believe they are in imminent danger may refuse to work if certain conditions are met. Employees at higher risk for severe COVID-19 complications can request a reasonable accommodation, as outlined in questions 3 through 6 in the questions related to Civil Rights protections below.
Can an employer require employees or workers at a job site to sign a non-disclosure agreement or other contract agreeing not to disclose information about health and safety in the workplace?
No. Such an agreement or contract would violate public policy, as expressed in public health and occupational safety laws, and would not be enforceable against the employee.
Can an employee be fired or retaliated against for raising safety concerns at work or making a complaint regarding workplace safety to a government agency?
No. As discussed in this guidance, various provisions of federal and state law prohibit retaliation against employees for raising safety and health concerns. Employees who believe they have been retaliated against may want to consider consulting with an attorney.
What can an employee do if they are concerned about multiple COVID-19 positive tests or symptomatic employees in the workplace?
Do health and safety laws and rules protect immigrant workers?
Yes. Health and safety laws apply to all employees, regardless of immigration status.
To report a possible COVID-19 outbreak, or if you have a concern that your workplace is not following public health rules regarding face coverings and/or capacity limits, please contact your local health department. A list of LHDs can be found at http://www.dph.illinois.gov/LHD
If you are concerned that your employer is not adhering to the required state COVID-19 workplace safety guidelines, you may contact the Workplace Rights Bureau of the Office of the Illinois Attorney General at (844) 740-5076 or firstname.lastname@example.org
If your concern is about a state or local government employer, you may file a complaint with Illinois OSHA at https://www2.illinois.gov/idol/Laws-Rules/safety/Pages/Hazards.aspx
Additional resources and frequently asked questions about COVID-19 and public health are available on IDPH’s website, https://www.dph.illinois.gov/covid19
Questions Related to Civil Rights Protections Under the Illinois Human Rights Act
What are an employee’s rights if they are being treated unfairly due to a COVID-19 diagnosis?
The IHRA and federal law prohibit employers from discriminating against employees on the basis of a disability or perceived disability. If an employee believes they have been fired, demoted, or harassed because they are being treated for, or recovering from, COVID- 19, they may file a charge with IDHR.
Can an employee be treated differently because they are from, or are perceived to be from, a country where there has been a serious COVID-19 outbreak?
No. Employers are prohibited, by the IHRA and federal law, from treating employees differently based on race or national origin. During a public health crisis such as COVID-19, there is a heightened potential for fear, stigma, and discrimination. If an employee believes they have been fired, demoted, or harassed because their employer believes that they are from a country where there is a high incidence of COVID-19 cases, they may file a charge with the IDHR.
What is an employer’s obligation if an employee requests an accommodation due to their treatment for, or recovery from, COVID-19?
Under the IHRA and federal law, employers must make reasonable accommodations for employees if, as a result of a disability, they need an accommodation to perform their jobs. If an employee requests a reasonable accommodation, such as telecommuting, staggering schedules, or taking a leave of absence, the employer should discuss the request with the employee to determine whether the requested accommodation, or another accommodation can be provided. An employer is not required to provide an accommodation that would be prohibitively expensive or unduly disruptive to the business.
If an employee has an underlying health condition that puts them at higher risk, is their employer required to allow them to work from home?
Working from home may be a reasonable accommodation under some circumstances. Other potential accommodations could include moving the employee’s workstation to a less crowded or better ventilated area or re-examining job duties to minimize interaction with other coworkers or members of the public. Under the IHRA and federal law, an individual with a disability has the right to request a reasonable accommodation from their employer. If an employee has a disability that affects the employee’s risk of contracting COVID-19 or increases the harm if the employee does contract the virus, they should request a reasonable accommodation from their employer. The employer should discuss the request with the employee to determine whether the requested accommodation, or another accommodation, can be provided. An employer is not required to provide an accommodation that would be prohibitively expensive or unduly disruptive to the business.
Can an employer treat an employee differently if they are especially vulnerable due to health conditions, such as a compromised immune system, or age?
No. The IHRA and federal law prohibit an employer from treating employees differently based on their age or an actual or perceived disability. Employers should not assume that an older employee, or an employee with an underlying health condition, is in need of special protection or accommodation.
Does an employee who is pregnant have a right to accommodation during the pandemic?
Yes. Under the IHRA and federal law, employees who are pregnant or recovering from childbirth, or who have a medical condition related to pregnancy, have the right to request a reasonable accommodation. If an employee affected by pregnancy, childbirth, or a pregnancy-related medical condition requests a job modification or adjustment such as telecommuting or staggering schedules, the employer must provide the accommodation unless it would pose an undue hardship on the business.
How do I file a charge of discrimination?
The process for filing a charge of discrimination, harassment, or retaliation can be started by completing a Complainant Information Sheet (CIS) and forwarding it to IDHR by email, fax, or mail. During the COVID-19 pandemic, IDHR strongly encourages filings via email as filing by mail or fax may delay processing.
Additional resources and frequently asked questions about COVID-19 and civil rights protections under the IHRA are available on IDHR’s website. For further information or to contact the Illinois Department of Human Rights, visit: https://www2.illinois.gov/dhr/AboutUs/Pages/contact_IDHR.aspx
Questions Related to Wage and Benefit Issues
Can an employee be laid off or fired because of the economic impact of COVID-19 on an employer’s business?
Yes. Generally, an employer can layoff or terminate an employee for economic reasons. Exceptions to this general rule are: (i) employees who are guaranteed employment for a certain period of time under an employment contract or (ii) employees performing work under a collective bargaining agreement that provides for procedures around employee layoffs and terminations.
Are laid off or terminated employees entitled to earned wages? Vacation pay?
Yes. The Illinois Wage Payment and Collection Act requires that, after separation from employment, employees must be paid all final compensation, including bonus payments, vacation pay, wages and commissions on their next regularly scheduled payday. 820 ILCS 115/5. More information on unpaid wages and the wage claim process is available on the Illinois Department of Labor’s (IDOL) website.
Are undocumented employees entitled to earned but unpaid wages?
All employees are entitled to their promised wages for all hours of work performed, regardless of immigration status.
Are employees on unpaid leave entitled to health insurance?
If an employee is receiving health insurance through their employer, the employer must continue that coverage during the leave period. (Employees should be aware that they may have to cover their portion of the health insurance expense that is typically deducted from their pay.)
How can an employee who has been laid off access health insurance?
Laid off employees who previously had employer-provided health insurance may continue their coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). Additionally, employees can choose to enroll in coverage provided through the Affordable Care Act.
Can employer with a routine, mandatory COVID-19 testing program require employees to pay for those tests?
No. State law prohibits an employer from requiring an employee to pay for the cost of medical examinations or records that the employer requires as a condition (or precondition) of employment. Workers who have paid out-of-pocket for employer-mandated COVID-19 testing may file a claim with the Illinois Department of Labor and use the box marked “Other” to describe the amount of out-of-pocket expenses incurred by the employee for mandatory COVID-19 testing.
Questions Related to Unemployment Insurance
Can an employee collect unemployment insurance if they are temporarily laid off due to COVID-19 related work closures?
An individual temporarily laid off in this situation can qualify for benefits if the individual is available for and actively seeking work. The individual qualifies as actively seeking work as long as they are prepared to return to their job as soon the employer reopens.
Can an employee collect unemployment insurance if they refuse to return to work because of concerns about COVID-19?
Individuals who refuse an offer of suitable work are disqualified from receiving unemployment insurance unless there is good cause for the refusal. The determination of whether work is suitable and whether there is good cause for refusing it is made on a case- by-case basis through the Illinois Department of Employment Security’s (IDES) hearing and adjudication process.
Can individuals get unemployment insurance at the same time as paid leave?
Generally, individuals currently receiving paid leave are not eligible for unemployment insurance. However, there may be circumstances in which an individual can receive unemployment insurance at the same time as paid leave. When applying for benefits, an individual must report any paid leave to which they are entitled.
Can workers who are temporary employees through a temporary staffing agency receive unemployment insurance?
Yes. Temporary employees hired through a temporary staffing agency can be eligible for unemployment insurance.
How long does unemployment insurance last?
Eligible employees can receive up to 26 weeks’ worth of regular state unemployment insurance and, depending on the unemployment rate, Extended Benefits may be available for an additional 13 or 20 weeks. Federal Pandemic Emergency Unemployment Compensation (PEUC) is a temporary program that provides up to 13 additional weeks of benefits to individuals who have exhausted all rights to regular unemployment insurance compensation with respect to a benefit year that ended on or after July 1, 2019. Pandemic Unemployment Assistance is available for up to 39 weeks for individuals whose unemployment is attributable to COVID-19 and who are not eligible for other unemployment benefits.
What assistance is available for freelancers, self-employed individuals, and independent contractors who have lost work as a result of the COVID-19 pandemic?
Pandemic Unemployment Assistance (PUA) was created to help self-employed individuals, freelancers, and independent contractors who lose work as a result of specific reasons set forth in federal law attributable to the COVID-19 pandemic and are not eligible for regular unemployment insurance. A precondition for PUA approval is that someone is not eligible for any other unemployment programs. Applying for and being denied benefits under the regular unemployment insurance program is the first step to establishing eligibility under PUA.
I receive a Form 1099 for the job(s) I do as an independent contractor. Am I eligible for Pandemic Unemployment Assistance (PUA)?
If you are a worker who received a Form 1099 and are not certain if you are eligible for PUA, you should file a claim for regular unemployment benefits for two reasons. First, not all individuals classified as “1099 employees” are actually “independent contractors” as defined by the Unemployment Insurance Act. Some of these individuals should have been classified as employees and therefore would be eligible for unemployment insurance. An employer’s failure to contribute to the unemployment system will not impact an individual claimant’s eligibility for benefits. Second, the PUA program has been established for individuals who are unemployed for specific reasons attributable to COVID-19 and not covered by the state’s regular unemployment insurance program. To establish eligibility under the new program, the claimant will have to demonstrate they are not eligible under the regular program. Applying for and being denied benefits under the regular program is the first step in establishing eligibility under the new temporary program.
How long will Pandemic Unemployment Assistance last? Will my PUA claim be backdated?
PUA payments are available for claimants who lost work due to specific COVID-19 related reasons provided for in the federal law beginning the week of February 2, 2020. PUA payments end on December 26, 2020. IDES will backdate claims to the first week of unemployment due to the COVID-19-related reason.
I am undocumented and lost my job because of COVID-19. Am I eligible for unemployment benefits?
In general, individuals not authorized to work in the United States are not eligible for regular unemployment benefits or benefits under the PUA. Among other things, they are not considered “able and available to work” under unemployment insurance law.
I have a Green Card and was recently laid-off due to COVID-19. Am I eligible for unemployment benefits?
Individuals with Green Cards issued by the federal government are generally “able and available to work” and may be eligible for unemployment benefits.
Additional frequently asked questions about COVID-19 and unemployment insurance are available on the IDES website. For further information or to contact the Illinois Department of Employment Security, visit: https://www2.illinois.gov/ides/aboutides/Pages/Contact_IDES.aspx.