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                  March 23, 2020
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ILLINOIS GOV. ISSUES COVID-19 STAY AT HOME EMERGENCY ORDER
On Friday, March 20, Illinois Gov. Pritzker issued a "stay-at-home" order for the state (click here), The Order began on Saturday, March 21, and expires on April 8, 2020.  
Non-essential businesses are required to cease activity.  

The order requires individuals not employed at an "essential business" or operation to work remotely from home and limit travel to only the essential businesses and activities listed in the order. The order allows citizens to continue conducting normal daily activities like going to grocery stores, pharmacies, doctor's offices, hospitals, etc. but only allows employees to travel to work if they work for an essential business or operation, or the travel is needed for minimum basic operations to maintain the business' economic value.  The order will also prohibit local governments from enforcing any home or apartment evictions and all Illinois schools will remain closed until April 8.  

The list of essential businesses and other operations that are exempted from Illinois' stay-at-home order can be viewed by clicking on the link above.  These include grocers and pharmacies, food and beverage production, the media, gas stations and transportation services and related businesses, financial institutions and banks, hardware and construction supply stores, building trades for critical maintenance, mail and shipping services, educational institutions for on-line learning, food services for pick-up or delivery, and hotels and motels for lodging.  
      
In terms of enforcement, the order is less clear stating that it will be enforced pursuant to the Illinois Emergency Management Agency Act.  However, at his press conference.  The governor stated it will likely follow these stages: (a) a warning; (b) possibly a cease-and-desist order; (c) business may have its license revoked or suspended; and (d) the business (or individual) could be charged with a misdemeanor offense. Businesses and other operations should carefully analyze whether they fall within one of the specified exceptions and may consider providing employees with a letter explaining why they are permitted to travel.

We will keep you updated on developments.  
AMERICANS WITH DISABILITIES ACT AND PANDEMICS  
During the H1N1 outbreak, the EEOC modified its position with respect to employer questions and concerns it could address with employees without running afoul of the Americans with Disabilities Act.  To memorialize its  position, it established guidance for employers concerning workplace rules and safety during pandemics.  Some of the more common questions and answers in such guidance include:   


During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.


Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.


Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

4. If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  


5. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? 


Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.


6.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? 

 

Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

 

7. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?


Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.


 

Click here for an electronic copy of the EEOC's pandemic guidance as it relates to the Americans with Disabilities Act:  HERE
SPOGNARDI BAIOCCHI LLP is  a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 
 
For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com
 
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DISCLAIMER: All content in this Client Alert is intended for general information only and is current as of the date and time of circulation.  Nothing contained herein should not be construed as legal advice applicable to your particular situation.  No attorney-client relationship is created. Before taking any action based on the information contained herein, you should consider your personal situation and secure the necessary legal and/or professional advice.