On April 21, 2021, the City of Chicago enacted the Vaccine Anti-Retaliation Ordinance that provides all workers in Chicago with rights to obtain COVID-19 vaccinations during their work hours and imposes significant penalties for employer violations. The Ordinance is effective immediately, applies to employers of any size and provides the rights discussed below to both employees and independent contractors.
The Ordinance provides that employers may not require a worker getting a COVID-19 vaccination to do so on the worker’s own time, regardless of whether or not the employer requires that its workers get vaccinations.
For employers that require their workers to get vaccinated, the employer must compensate the worker at the worker’s regular rate of pay (as defined by the Fair Labor Standards Act) for the time the worker takes to get the vaccination, up to four hours per dose, if the vaccination appointment time is during a shift. Employers requiring that their workers get vaccinated may not require the worker to use paid time off or paid sick leave for the missed time.
For employers that do not require that their workers get vaccinated, workers must be permitted to use accrued or available paid sick leave or paid time off to get a vaccine upon the worker’s request to use such paid time. If the worker does not have available accrued paid leave, the time off will be unpaid.
The Vaccine Anti-Retaliation Ordinance prohibits an employer from taking adverse action against a worker for taking time during a shift (i.e. the continuous work day including meal and rest periods) to get vaccinated. Such an adverse action shall be considered retaliation under Chapter 1-24 of the Municipal Code of Chicago, the Chicago Minimum Wage and Paid Sick Leave Ordinance. Retaliation would also include taking adverse actions for disclosing, reporting or testifying about any violation of the Ordinance. An adverse action means most any discipline and includes termination, denial of promotion, negative evaluation, punitive schedule changes, less desirable assignments and harassment.
The Commissioner of Business Affairs and Consumer Protection or the Director of Labor Standards may take action against the employer by bringing an action in administrative hearings or requesting the Corporation Counsel file an action in court.
The potential penalties against employers and remedies to workers are also significant. Employers found in violation of the Vaccine Anti-Retaliation Ordinance shall be liable for a fine of between $1,000 and $5,000.
In addition, a worker who has been subjected to a violation of the Ordinance may file a civil action seeking reinstatement, treble damages of three times the full amount of wages that would have been owed had the retaliation not occurred, and any other actual damages caused by the retaliation, together with costs and reasonable attorneys’ fees. The Ordinance uses the Municipal Code’s definition of person, which provides for personal liability as well.
The Ordinance shall automatically be repealed when the Commissioner of Public Health makes a written determination that the threat to public health posed by COVID-19 has diminished to the point that the ordinance can safely be repealed.
The Commissioner of Public Health has the authority to promulgate rules to implement the Ordinance, and such rules may or may not add clarity to questions such as the extent of an employer’s right to require that any vaccination time be taken at a time that is comparatively less disruptive to operations, the employer’s right to require advance notice, and the number of vaccinations permitted per worker in the event of a need for booster shots.
Illinois employers that engage employees or contractors for work in the City of Chicago should educate managers, supervisors and human resources professionals to be aware of this Ordinance and its requirements to ensure that employees are permitted to take time during the workday to get vaccinated, are paid for that time if vaccines are required, are provided any accrued paid sick time or paid time off if vaccines are not required, and are not subjected to retaliation or negative consequences as a result of getting vaccinated during the work day.
If you have any questions regarding the issues addressed in this Alert, please contact the authors, John O’Connor, partner in our Chicago office at joconnor@fordharrison.com and Kimberly Ross, partner in our Chicago, St. Louis and Minneapolis offices at kross@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.