Last month, Governor J.B. Pritzker, in conjunction with the Department of Commerce and Economic Opportunity (DCEO) and the Illinois Department of Public Health (IDPH), released Phase IV of the Restore Illinois Plan. This plan consists of industry-specific Return to Work toolkits and training requirements covering proper social distancing, cleaning, provision and proper use of face coverings, as well as other training and safety procedures related to further preventing the spread of the coronavirus. On June 26, 2020, the governor issued Executive Order 2020-43, directing compliance with the Phase IV Return to Work toolkit and training requirements. Executive Order 2020-44, issued the same day, extends the provisions of the majority of prior executive orders through July 26, 2020.

Phase IV extends certain guidelines from Phase III, including the best practices for General Health and External Interactions.  Additionally, Phase IV creates new guidelines and imposes new obligations on employers. The highlights include:

• While Phase IV maintains that offices may operate at a maximum occupancy of 50% of office capacity, it also states that these capacity restrictions will be reassessed on an ongoing basis as the latest science and public health metrics are released.
• The HR and Travel Policies include two new obligations:
  
  • Employers should clearly explain all paid leave policies and make workers aware that they may be eligible for benefits if they are sick or symptomatic.
  • Employers should be aware that the Occupational Safety and Health Act of 1970 and provisions of state law prohibit employers from retaliating against workers for raising safety or health concerns.
• The Health Monitoring guidelines establish new screening and case-reporting procedures:
  
  • Where “workplace configuration or staffing” makes screening upon entry infeasible, employers may (1) screen employees via an in-person conversation or questionnaire at their work station, or (2) use a virtual method of screening via an online survey, mobile application, or other similar method.
  • If an employee reports having any COVID-19-related symptoms, they should remain isolated at home until meeting one of the following requirements: (1) a minimum of 10 days has passed after symptom onset, (2) the employee is feverless and feeling well (without fever-reducing medication) for at least 72 hours, or (3) the employee is confirmed to not have COVID-19 via two negative COVID-19 tests in a row, with testing done at least 24 hours apart. This policy has shifted employee reporting requirements from being limited to those employees who have contracted COVID-19 to all employees who have any COVID-19-related symptoms.
  • If an employee reports having any COVID-19-related symptoms, employers should encourage that employee to contact their health care provider. If multiple employees report having any COVID-19-related symptoms or test positive for COVID-19, employers should notify their local health department within one day of being informed of the prevalence of COVID-19 symptoms in the workplace or positive test results.
• The Physical Workspace guidelines have removed the prohibition on water fountain usage and have made the six-foot visual queue marker a “recommended best practice” rather than a “minimum guideline.”
• The Disinfecting/Cleaning Procedures now state that all required disinfecting, cleaning, or sanitizing activities to be conducted by employees should be within their normal workday or during otherwise compensable time.
• The Staffing and Attendance guidelines have increased in-person meeting attendance from 10 people to 50 people, with social distancing.

In conjunction with the governor’s initiatives, in recent weeks, Illinois employers have received requests for information from the Illinois attorney general regarding compliance with the governor’s executive orders on the state’s phased reopening.  As previously discussed, the governor’s ability to enforce the executive orders is tenuous, and is currently being tested in the courts.¹  However, the Illinois attorney general is using its authority and responsibility for prosecuting violations of the Illinois OSHA, 820 ILCS 219/1, to investigate and enforce the safety of the workplace through its Worker Protection Unit. Thus, while the executive orders themselves do not come with penalties, an employer’s failure to comply is being deemed as a basis for the attorney general to enforce its authority under Illinois OSHA.

Therefore, although there may be no direct employer liability for lack of compliance with the Return to Work guidelines, training and toolkits, failure to comply may be used as a basis for the attorney general to hold employers liable for OSHA-based complaints.