COVID-19 Safe Workplace Training Illinois

The Governor’s Executive Order and guidelines issued by the Illinois Department of Commerce and Economic Opportunity (DCEO) require businesses to provide COVID-19 training to employees.

Nevertheless, whether the state can actually enforce the requirement to provide COVID-19 workplace training has been an issue of considerable debate. Below, we discuss the Governor’s Order and DECO guidance, as well as potential liability issues that could arise if an employer does not train employees on COVID-19 safety measures.

The Executive Order and State Agency Guidance

To assist employers in providing a healthy workplace during the COVID-19 pandemic, DCEO issued Return to Work toolkits, instructing employers to provide COVID-19 training, along with other workplace safety measures. Guidelines issued by DCEO entitled Checklist for Employee Training: Phase 4, specifically state: “[a]ll workers must complete health and safety training related to COVID-19 when initially returning to work.” The Governor subsequently issued Executive Order 2020-43, directing employers to comply with the DECO Return to Work toolkits

However, some businesses have argued that the Executive Order does not cite correct sections of the law for enforcement. As a result, the Order does not technically impose any penalties for non-compliance with the COVID-19 employee training requirement. Littler, Illinois Returns to Work with Certain Conditions and Employer Requirements (June 8, 2020)

Nevertheless, the Governor’s Office and the Attorney General have taken the position that businesses must follow the Order and DCEO guidelines. In fact, the Attorney General’s website contains information on how to make COVID-19 workplace complaints, stating that employees may “report a business that is not following the appropriate guidelines to prevent the spread of COVID-19.”

Although several lawsuits have been filed challenging the Governor’s authority to issue COVID-19 Orders, courts have largely held in favor of the Governor. 

Employer Liability Issues 

Regardless of whether the Governor’s Executive Orders are ultimately upheld, employers may still face liability for failing to provide employees with workplace safety training, as discussed below. 

Workplace Safety Enforcement

Under the Occupational Safety and Health Act (“OSHA”), employers are required to provide a safe and healthful workplace free from known hazards. This is known as the “General Duty” clause. There are four required elements of a “General Duty” clause violation:

  • The employer failed to keep the workplace free of a hazard to which employees were exposed;
  • The hazard was recognized;
  • The hazard was causing or was likely to cause death or serious physical harm; and
  • There was a feasible and useful method to correct the hazard. 

Given how easily COVID-19 spreads, the Occupational Safety and Health Administration (“OSHA”) could reasonably issue a “General Duty” citation should the coronavirus permeate the workplace. That said, an employer may be able to avoid such a citation if it can show it implemented the recommended workplace safety precautions, including employee training, consistent with the Governor’s Order and DCEO’s guidelines. 

Tort Claims

Workplace litigation relating to COVID-19 has sharply increased, highlighting the implications for non-compliance with state orders and workplace safety guidelines.

For example, liability for tort claims, such as wrongful death, can arise if the employee’s family can prove the employer acted “negligently” or “recklessly” in failing to provide a safe workplace. The potential to make such a claim increases with available contact tracing and a showing that the employer did not comply with the Governor’s Executive Order and DCEO guidance.

In a recent case against several McDonald’s franchises in Chicago, Illinois, a Circuit Court judge issued a preliminary injunction ordering the restaurants to correctly train employees on social distancing measures and enforce mask-wearing policies, as required by the Governor’s Order. Five employees brought the lawsuit against the franchisees, claiming the restaurants acted negligently and created a public nuisance by not correctly training employees on social distancing and failing to enforce face-covering requirements. Relying on the Governor’s Order and state agency guidance, the court found plaintiffs successfully showed the possibility of coronavirus infection at the workplace was “highly probable.” As a result, the court ordered the franchisees to correctly train employees on social distancing measures and properly enforce face-covering requirements consistent with the Governor’s Order.

Clear Law Institute has created an interactive, self-paced online training that complies with this training requirement, and similar requirements in other states, in addition to the OSHA guidelines that apply nationwide. Clear Law Institute’s COVID-19 Safe Workplace Training is fully narrated and includes numerous interactive animations, video demonstrations, and exercises.

Clear Law Institute provides online compliance training for more than 1,000 employers, handles training roll-out to employees, supports tech issues, and tracks course completion.

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