Updated COVID-19 Illinois OSHA Reporting and Recordkeeping for Local Governments
Recently, the Illinois Department of Labor (IDOL) published updated reporting requirements and recordkeeping guidance
for Illinois state and local government employers regarding COVID-19 workplace exposures.
In addition to the requirement for state and local government employers to report all work-related fatalities within eight (8) hours and all work-related hospital admissions, amputations, and losses of an eye within 24 hours to Illinois OSHA by calling (217) 782-7860, employers now must report a COVID-19-related fatality, if the fatality occurs within 30 days of exposure at work. Employers must also report any COVID-19-related hospital admission within 24 hours of exposure at work.
Upon a reported case of COVID-19, Illinois OSHA may investigate. If the investigation reveals or clearly identifies a work-related exposure, Illinois OSHA will review the circumstances of the exposure to determine if a violation of the Illinois Occupational Safety and Health Act occurred. If the investigation reveals or clearly identifies that the exposure occurred outside of the workplace, Illinois OSHA would close the investigation.
COVID-19 is a recordable illness under Illinois law, which means employers must record cases if:
- the case is confirmed to be COVID-19;
- the case is work-related defined under 56 Ill. Adm. Code 350.270; and
- the case involves one or more of the general recording criteria established under 56 Ill. Adm. Code 350.290.
Employers should code documented cases of COVID-19 as respiratory on OSHA Form 300. Employees may voluntarily request to have their names excluded from the employer’s records—when this occurs, employers must comply.
Employers should note that maintaining records of documented employee COVID-19 cases does not necessarily mean the case was work-related or that the employer violated any Illinois OSHA standards. Instead, proper recordkeeping is a matter of public health to protect worker health and safety.
COBRA Headaches during the Pandemic
COVID-19 has brought numerous headaches to the administrative processes that run most employers' and employees' daily lives. One such headache is employer compliance with the Consolidated Omnibus Budget Reconciliation Act (COBRA).
As employers know, COBRA generally requires employers with 20 or more employees to offer employees and their families a temporary extension of health coverage (known as a continuation of coverage) for a limited period. You can read more about COBRA compliance, continuation coverage assistance, frequently asked questions, and more by clicking here. Under the statute, employees may elect COBRA continuation coverage under their employer's group health plan up to 60 days after a qualifying event.
As a result of the pandemic, the U.S. Department of Labor (DOL) and Internal Revenue Service (IRS) jointly published the Extension of Certain Timeframes for Employee Benefit Plans, which contains temporary rule changes to COBRA. The new rules extend traditional statutory deadlines, which can cause some administrative confusion for employers.
As it relates to COBRA, group health plans, disability, and other employee welfare plans "must disregard the period from March 1, 2020, until sixty (60 days) after the announced end of the National Emergency or such other date announced by the Agencies in a future notification." The notice labels this period as the "Outbreak period." On March 13, 2020, President Trump issued Proclamation 9994 (Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak), which became effective on March 1, 2020, and has yet to expire.
Notably, the 60-day extension applies to the following deadlines:
- The 60-day election period for COBRA continuation coverage;
- The date for making COBRA premium payments;
- Procedural dates for filing and responding to claims (see the notice for more details).
The notice provides examples of the first two bullet points. If theoretically, the outbreak period ended on April 29, 2020, and Employee A experienced a qualifying event (furloughed by the employer to reduce workforce) on April 1 and was provided notice of COBRA eligibility, Employee A would have until August 28, 2020 (because June 29, 2020, was the theoretical end of the 60-day extension) to elect COBRA benefits. This is the case because Employee A would typically have 60 days to elect COBRA benefits when notified, but the rule change awards a 60-day grace period for the deadline.
A similar scenario occurs for payment of COBRA premiums. Using the same facts as above, let's say a qualifying individual (Employee B) received COBRA continuation coverage on March 1, 2020 (with the 45-day period to pay benefits already passed). Employee paid their premium in February but did not pay between March-June. In this case, Employee B must pay premiums by July 29, 2020 (60 days after the theoretical April 29, 2020 end of the outbreak period, and 30 days to meet the statutory deadline for payment of premiums). The guidance states that Employee B, in this case, would be eligible to receive coverage under the terms of the plan during this period, even though some of Employee B's premium payments may not be received until July 29, 2020.
Using the facts above, if Employee B made premium payments on July 29, 2020, but only premium payments for March and April (two payments), the plan would only have to cover claims made during those months. The plan would not be obligated to cover benefits or services occurring after April 2020.
COVID-19 renders an already complicated administrative regime that much more convoluted. To ensure compliance, employers should be keenly attentive to any changes to COBRA rules as the U.S. continues to address the ongoing global pandemic. Please seek appropriate legal counsel and meet with your plan administrator to keep updated on COBRA-related issues.
Illinois Supreme Court Issues Narrow Ruling on “Other Offices”
The Illinois Supreme Court recently issued a narrow opinion weighing in on the definition of home offices. In Tabirta v. Cummings
, Plaintiff, a truck driver, was driving through the State of Ohio when another truck driver collided with the plaintiff. Plaintiff suffered serve injuries causing him to lose both of his legs. The defendant driver is an employee of the Gilster-Mary Lee Corporation (GML), which is a food manufacturing company located incorporated in Missouri but is headquartered in Chester, Illinois located in Randolph County.
Plaintiff filed suit in Cook County, Illinois. GML challenged the suit stating that venue was improper, which means Cook County was not the proper place to file the suit because that is not where the action took place nor did GML have any contacts with Cook County related to the lawsuit.
Plaintiff argued that he could file and litigate the suit in Cook County because GML maintained an “other office” in the county. Plaintiff discovered that GML employed a part-time worker, James Bolton, who assisted GML with customer service for three grocery store chains in Illinois. Bolton conducted most of his job functions over the phone at his home in Cook County. He also maintained a telephone extension that relayed customer service calls to his residence. There was no evidence that GML paid for Bolton’s property. Further, the vice president of sales and research and development stated in an affidavit that Bolton’s hiring was based purely on his geographic location in Northern Illinois and his years of experience in the food industry (Bolton retired in the food industry in 2010 and has some-50 years of experience).
Both the Illinois Circuit Court and Appellate Court found the Bolton’s office constituted an “other office” to allow the suit to continue. Defendant appealed to the Illinois Supreme Court.
Writing the opinion of the Court, Justice Anne E. Burke found that Bolton’s work situation did not constitute an “other office.” GML hired Bolton because of his experience and geographic location—not because he was a resident of Cook County. Further, the plaintiff’s contention that GML’s 1-800 number relayed to Bolton’s personal phone was found to be irrelevant. All customer service calls intended for Bolton were routed through GML’s call center and transferred to Bolton’s cell phone. Theoretically, Bolton could conduct business on behalf of GML anywhere—not just his residence in Cook County. Thus, Bolton’s residence in Cook County was not considered an “other office” for litigation purposes.
In general, Tabirta’s legal significance is not the final authority on other offices or working from home. The case is in particular a very fact-intensive case. Nonetheless, Illinois employers should take note of Tabirta as remote work (especially employing workers in different counties and states) becomes more prevalent.
Social Media Policies and the November General Election
It's that time of year again...
No, not the crinkling of dry leaves or heavenly smells of pumpkin spice lattes-it's election time, which means it's time to dust off that social media policy!
Elections pose a unique challenge to human resource departments and employment attorneys. Although we unequivocally support an employee's right to exercise their civic duty and participate in the electoral process, employers should be mindful of the workplace issues that may arise around elections.
This year is particularly notable because (1) this will likely be a contentious election spanning multiple days (and perhaps weeks), and (2) the election is taking place during a global pandemic-thus prompting employees to shift any discussions from now-empty offices to social media.
The U.S. Constitution protects our rights to engage in free speech and assembly. In the employment context, however, free speech rights have been tailored to balance workers' rights and consider an employer's interest in maintaining safe and productive work environments. Employers may limit and regulate forms of speech in the workplace but must abide by certain considerations in specific instances of employees engaging in speech.
Private Employee Speech
Private employers have immense latitude with which to regulate speech in the workplace. Under the National Labor Relations Act (NLRA), however, private employers cannot limit the right of employees to engage in "protected concerted" activity for "mutual aid and protection" regarding conditions in the workplace.
Like the physical workplace, private employers enjoy many of the same protections to regulate speech online as they do in a physical workplace. The National Labor Relations Board (NLRB), the administrative body that oversees claims arising under the NLRA, states on their website that employees "have a right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media." This right only extends to group actions; thus, individual gripes will not suffice.
Employers that find an employee's speech concerning should review their social media policy and confer with legal counsel about appropriate next steps to address the situation accordingly.
Government Employee Speech
Government employers possess slightly less power to regulate speech in the workplace. Government employers can regulate speech in the workplace unless the speech touches on a matter of public concern. If it does, employers must determine whether the speech was made under the employee-speaker's job duties. An employer can then consider whether there is a governmental interest in regulating such speech to maintain workplace productivity and harmony.
Additional considerations should be made when an employee is engaged in political speech on their social media accounts. Here, government employers should be incredibly careful not to make adverse employment decisions based on an employee's political views. Instead, government employers should look to whether the employee publicly identifies (“holds out”) themselves as an employee of the governmental entity and publishes concerning content; their speech makes false or misleading claims about the entity as a whole, or its employees or subsidiaries; or the employee's actions violate the employer’s established social media policy.
If an employee exhibits any of these behaviors online, an employer should review their current social media policy and confer with legal counsel about appropriate next steps.
Social Media Policies
As the election approaches, employers should review their social media policies to ensure they express the employer’s expectations and address the fundamental issues referenced above.
Please refer to these helpful tips when reviewing and/or updating your social media policy:
- Ensure that ALL employees were provided a chance to review and acknowledge established policies for social media conduct online.
- Remind employees to be mindful that content published online-in any medium-is at risk of being distributed throughout the internet.
- False or misleading claims published by an employee about the entity may be subject to disciplinary action.
- Employees should be discouraged from posting personal work-related complaints online and instead submit complaints to appropriate persons (union representatives, direct supervisors, etc.) established in the employer's code of conduct.
- Employees should abide by any confidentiality requirements established by the employer.
- Applicable rules of social media conduct may apply-not just to an employee's personal social media account-but also instances where the employee "comments" on other content.
- "Holding out" oneself as an agent of the employer online without express permission and supervision may pose conflicts. Although such action is not usually prohibited, employees should be mindful of listing their employment status on social media when publishing content.
- Employers should set expectations about protecting the entity’s intellectual property (logos, slogan, etc.).
Create and Enforce a Remote Timekeeping Policy
Last month, the U.S. Department of Labor issued guidance about remote timekeeping that employers should take a look at. You can view the guidance by clicking here
As we have previously discussed, employees who make less than $684 per week and perform white-collar work must be paid for all authorized time they spend performing duties in the scope of their employment. This has always presented a challenge to employers, as what constitutes authorized time can sometimes be unclear. Courts have generally found that it includes all time that the employee spent performing job duties that the employer knew or should have known about.
Tracking authorized time can be more difficult when employees work from home. To deal with this we have encouraged employers to develop remote timekeeping policies to keep track of employee time spent working from home. Ideally, this would include an electronic system that employees can log into at the start of their day and log out of at the end of it and that would have clear rules on work that can be performed outside of this time period.
The DOL guidance underscores the importance of employers being diligent about ensuring that their employees are not performing off-the-clock work. Once an employer learns that an employee is performing off-the-clock work it is the employer’s obligation to stop this.
If an employer knows that an employee is performing work after hours and does nothing to stop the employee from performing that work, the employer will likely be required to pay the employee for this work. Once the employer becomes aware of off-the-clock work, it bears the burden of proving that it told the employee that such work was not permitted. If it cannot meet this burden then it will be responsible for paying the employee for this work.
Without a remote timekeeping policy in place, this becomes much more difficult. Employers need to make it clear when an employee’s day starts and ends and the consequences for working outside of that period.
Feel free to contact us by email at email@example.com or by phone at (312) 604-9125 if you have questions about remote timekeeping policies or would like help drafting one.