COVID-19 Return to the Workplace Training Illinois
Whether Illinois mandates Covid-19 safety training in the workplace has been an issue of considerable debate. In this article, we discuss the Governor’s Order and the state agency guidance, as well as other potential liability issues that may arise for failing to properly train employees on the appropriate safety measures needed to minimize the spread of Covid-19 in the workplace.
The Governor’s Order and State Agency Guidance
The Illinois Department of Commerce and Economic Opportunity (DCEO) has issued Return to Work toolkits, which instructs employers to implement employee safety training, proper social distancing, the use of face coverings, and appropriate cleaning procedures, as well as other safety measures.
Guidelines issued by DCEO entitled Checklist for Employee Training: Phase 4, specifically instruct:
All workers must complete health and safety training related to COVID-19 when initially returning to work.
This Checklist further outlines the content required for workplace safety training.
On June 26, 2020, the Governor issued Executive Order 2020-43, directing compliance with the DCEO Return to Work toolkits. The Order’s “Enforcement Provision” states:
This Order may be enforced by State and Local law enforcement pursuant to, inter alia, Section 7, Section 15, Section 18, and Section 19 of the Illinois Emergency Management Agency Act (“IEMA”), 20 ILCS 3305.
Businesses must follow guidance provided or published by the Illinois Department of Commerce and Economic Opportunity regarding safety measures during Phase IV, and the Illinois Department of Public Health, local public health departments, and the Workplace Rights Bureau of the Office of the Illinois Attorney General with respect to Social Distancing Requirements. Pursuant to Section 25(b) of the Whistleblower Act, 740 ILCS 174, businesses are prohibited from retaliating against an employee for disclosing information where the employee has reasonable cause to believe that the information discloses a violation of this Order.
Taken together, the plain language of the Executive Order and DCEO’s Guidance requires businesses to provide Covid-19 health and safety training for employees upon return to the workplace.
However, the cited sections of IEMA in the Governor’s Order do not place any affirmative liability or penalties for non-compliance on businesses or employers. In fact, the Governor had previously directed the Illinois Department of Health to issue an emergency rule, which included “the power to seek penalties pursuant to Section 8.1 of the Illinois Public Health Act . . .”, but then repealed the rule shortly after in response to complaints from business owners. Littler, Illinois Returns to Work with Certain Conditions and Employer Requirements (June 8, 2020) (describing the same scenario with previous Phase 3 Executive Order (May 29, 2020) and DECO business guidelines, which included the same language as Phase 4 Executive Order and DECO business guidelines).
Other Liability Issues
Regardless of the lack of penalties in the Governor’s Order, employers still face potential liability for non-compliance with the Governor’s Order by, among other things, failing to implement Covid-19 safety training as outlined in DCEO’s guidelines upon employees’ return to the workplace.
OSHA and Workplace Safety Liability
Under OSHA’s “General Duty” clause, employers must provide a safe and healthful workplace that is free from known hazards. 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, OSHA could reasonably issue a citation should the coronavirus permeate the workplace and the employer is unable to show it provided the required safe and healthful workplace free of known hazards. In the event such a claim arises, the employer can bolster its defense by showing it implemented the recommended safety precautions, including workplace safety training, consistent with the Governor’s Order and DCEO’s guidelines.
In addition, the Illinois Attorney General’s Office (AG’s Office) is taking employee complaints about unsafe working conditions and has provided a specific email address to receive workplace Covid-19 complaints. The Illinois AG’s Office also notes on its website that “government entities are receiving a high volume of complaints and inquiries . . . ”
In recent weeks, Illinois employers have received requests for information from the Illinois AG’s Office to show compliance with the Governor’s Executive Orders for safely reopening the workplace. Although several court cases have been filed challenging the Governor’s authority to issue such orders, the Governor’s Executive Orders have generally been upheld, particularly in state and federal court. Appeals on these court decisions are pending.
Personal Injury and Other Tort Claims
Workplace litigation relating to Covid-19 has sharply increased, highlighting the implications for an employer’s non-compliance with Executive Orders and state workplace safety guidelines.
An example of the type of employer liability that could arise for not implementing the recommended workplace safety training includes tort claims, such as wrongful death, 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, including failing to provide its employees with the necessary workplace safety training.
In a recent case against several McDonald’s franchises in Chicago, Illinois, a Circuit Court judge issued a preliminary injunction ordering franchisees to train employees on proper social distancing and enforce mask-wearing policies, in compliance with the Illinois Governor’s Order. Five employees brought the lawsuit against McDonald’s 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 were successful in showing the possibility of infection at the workplace and subsequent injury was “highly probable.” As a result, the court ordered the restaurants to provide employee training on appropriate social distancing practices in the workplace and to properly enforce face-covering requirements.
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, which provides online compliance training for more than 1,000 employers, handles rolling out the training to your employees, tech support issues, and tracking course completions.
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