Defendants are beginning a new line of legal arguments which have garnered the attention of the Illinois Appellate Court.  The argument is that BIPA claims which arise in the employment context are preempted by the Illinois Workers' Compensation Act (IWCA; 820 ILCS 305/et seq.)

IWCA has specifically states that: 

• IWCA is the exclusive remedy for accidental injuries sustained by any employee arising out of and in the course of employment; and
• an employee has no common law or statutory right to recover damages from the employer for injury or death sustained by any employee while engaged in the line of his duty as such employee other that the compensation provided by IWCA

In McDonald v. Symphony Bronzeville Park, LLC, Circuit Court No. 17-CH-11311, Judge Mitchell granted the Defendant's motion to certify the question for immediate appeal and the Illinois Appellate Court granted application for leave to appeal on December 19, 2019.  

 

In light of this development, some trial courts are granting a stay on BIPA cases involving the employment context while the Illinois Appellate Court considers McDonald.    

Employers who may be faced with any level of viral or other infections in the workplace need to understand the intersection of laws and the balancing of employee rights versus duties of the employer to its workplace.  

An employee with Coronavirus or any type of infection would likely be covered under ADA (as amended) and if applicable to the employer, Family Medical Leave (federal and/or state).  

ADA:  Under ADA, an employee with Coronavirus, exposed to Coronavirus or even thought to be exposed could fall under the definition of a Qualified Individual with a Disability. An employer can make inquiries of such individual if such inquiry is job related and consistent with business necessity and then must follow the ADA guidelines pertaining to medical records.  

However if the employer determines that the employee is a direct threat to the health or safety of him/herself or others in the workplace, the employer can require the employee to disclose all relevant health information.   Also remember that an employer can require an employee to undergo medical testing based upon a reasonable belief that an employee may have been exposed to an infectious disease such as Coronavirus and is demonstrating some symptoms. 

FML: Don't forget about any intersection of family medical leave (FML) for employers who may be covered.  This type of situation would likely trigger federal and any state FMLA and the rights employees have under such laws.  

What about keeping a healthful work environment for all employees under OSHA?  When exposure to infectious diseases such as Coronavirus is likely, employers should take certain precautions to remain compliant with its duties owed under OSHA.  Employers at this time should look to the CDC's guidance which is based on industry standards as well as state health departments. 

There is no doubt there is a lot to consider as an employer, especially if such employers are in the hospitality and food service industries.  But having a well thought out and communicated "plan" in place to address these types of situations is well advised to keep the workplace calm, keep employees focused on work and keep the company profitable.