Illinois Employee and Employers’ Rights During Covid-19

In this article, we discuss Illinois employee and employers’ rights during the coronavirus pandemic and attempt to answer the following questions:

• How does sick pay work under the Families First Coronavirus Response Act (FFCRA)?
• Which employers qualify for the provisions under the FFCRA?
• What reasons qualify an employee for paid sick leave under the FFCRA?
• What are the different durations of leave and pay calculations afforded under the FFCRA?
• What is the current coronavirus hazard pay situation for essential workers in Illinois?
• How has the furlough process for Illinois employers changed due to coronavirus?

How Does Sick Pay Work Under The Families First Coronavirus Response Act?

Under the Families First Coronavirus Response Act, certain employers are required to provide their employees with paid sick leave or expanded family and medical leave for certain reasons related to Covid-19. The provisions under this act are currently effective until December 31st, 2020. Under the act, covered employees are eligible for:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular hourly rate or salary equivalent where the employee is unable to work because they are under official quarantine, or experiencing symptoms of Covid-19 and seeking a diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at two-thirds of the employee’s regular hourly rate or salary equivalent because the employee must care for an individual who is under official quarantine, a child whose school is closed due to coronavirus, or is experiencing a condition with symptoms markedly similar to coronavirus; and
• Up to an additional 10 weeks of expanded paid family and medical leave at two-thirds hourly rate or equivalent salary who has been employed for at least 30 calendar days and has a bona fide need to care for a child or family member whose normal caretaker is unavailable due to coronavirus

Which Employers Qualify For The Provisions Under The FFCRA?

Private employers with fewer than 500 employees, but more than 50 employees should be included in the requirements under the FFCRA. Certain public employers are also required to adhere to the paid sick leave and extended family and medical leave provisions under the FFCRA. Most federal employees are exempt from the expanded family and medical leave provisions under the FFCRA, but should still receive the two weeks of paid sick leave if appropriate.

Employers with less than 50 employees may qualify for exemption from the FFCRA leave requirements if they can prove that the employee’s leave would jeopardize the business’s viability.

What Reasons Qualify An Employee For Paid Sick Leave Under FFCRA?

The FFCRA breaks down the qualifying reasons for paid sick leave into six categories:

1. The employee is subject to an official quarantine due to Covid-19;
2. The employee has been advised by a health care advisor to self-quarantine;
3. The employee is currently experiencing Covid-19 symptoms and seeking diagnosis;
4. The employee is caring for an individual under quarantine;
5. The employee is caring for a child whose school or childcare provider is unavailable; or
6. The employee is experiencing a substantially similar condition to Covid-19

What Are The Different Durations Of Leave And Pay Calculations Afforded Under The FFCRA?

Depending on the reason the employee is taking leave—based on the categories above—the duration of leave and the rate of pay may vary:

Duration of leave for reasons 1-4 and 6: a full-time employee is eligible for 80 hours and a part-time employee is eligible for the average number of hours he or she works in a two-week span. Reason 5: Full-time employees are eligible for up to 12 weeks (2 weeks of sick leave and 10 weeks of expanded family and medical leave) at 40 work hours per week. Part-time employees are eligible for the same 12 weeks at the average number of hours worked per week.

Calculation of pay for reasons 1, 2, or 3: Pay will be at the employee’s regular rate or the minimum wage, whichever is higher, up to $511/day, and no more than $5111 over the two week period.

Calculation of pay for reasons 4 or 6: Pay will be at two-thirds the applicable minimum wage or the employee’s normal rate, whichever is higher, up to $200/day, and no more than $2000 over the two week period.

Calculation of pay for reason 5: Two-thirds applicable minimum wage, up to $200/day, and no more than $12,000 over the 12 week period.

What Is The Current Coronavirus Hazard Pay Situation For Essential Workers in Illinois?

To this writer’s best knowledge, there is no specific legislature, mandate, or law that describes a change in hazard pay for essential or non-essential workers across the state of Illinois. Certain companies may choose to increase pay for employees deemed essential during the coronavirus pandemic, but it is not required by law at this time.

How Has The Furlough Process For Illinois Employers Changed Due To Coronavirus?

Despite some minor provisions in the FFCRA, the furlough process In Illinois has remained largely unchanged despite the coronavirus pandemic. Furloughed employees can still use PTO during the furlough period or apply for unemployment benefits. Employers covered under the FFCRA can force employees to use PTO to offset any leave benefits received under the FFCRA. Health insurance eligibility under furlough depends on the employer’s insurance plan. 

Employers should be sure to consult the WARN Act when considering furlough and lay-off of employees. While furloughing shouldn’t trigger any of the provisions in the WARN Act, if the furlough goes beyond a certain period—usually 6 months, but there is no definite time frame—and the state views the employees as terminated, the employer might run into an issue if they did not give the requisite 60-day notification. However, under the WARN Act the 60-day notice may not apply if the sole reason is Covid-19, as it falls under the “unforeseen circumstances” portion of the act.