Illinois Chamber Employment Law Council - End of Session Report
It was the strangest end of session in my 40 plus years of lobbying in Illinois. While the Senate met in its chambers, access to the floor was limited to no more than 10 senators at a time, and staff and all senators wore masks as they debated legislation. To be able to practice social distancing, the House met in Springfield's convention center. Their first day of return was highlighted with the removal of one member for his refusal to wear a mask. He returned the next day with his mask. Access to lawmakers by the public and lobbyists was severely limited. Only one small room was open at the Capitol for use by the public to watch the legislative proceedings on TV monitors. Only written testimony was allowed. The legislative website allowed for monitoring of the activities but text messaging and cell phone conversations were the only means of communication with staff and legislators. Normally, the final days are filled with time spent in legislator's offices discussing strategy, providing verbal testimony on hastily fashioned amendments and button-holing lawmakers in the halls of the Capitol.
The Illinois General Assembly wrapped up the Spring Session in the early morning hours of May 24th. Their next scheduled return is for the Veto Session in November. There were discussions that working groups and or committees will be tackling issues over the summer depending on the status of the COVID-19 virus.
FY2021 Budget
On a partisan basis, Democrats sent Gov. Pritzker a $43 billion budget, which is over $2 billion more than the FY20 budget that passed last year. With state tax revenues having plummeted to $36.8 billion, nearly $5 billion of the $36.8 billion in tax revenues comes from new borrowing from the Federal Reserve authorized by the CARES Act. Democrats tout the approved budget as one that
prioritizes public health and safety and vital services. Republicans are critical of the spending levels given the uncertainty of future revenues. Republicans are especially upset with the ceding to the Governor of nearly $7 billion
in Corona virus relief funds without their input and any limitations on the Governor's spending abilities.
Workers' Compensation
We are expecting
HB 2455
addressing the workers' compensation rebuttable presumption issue to be signed by Governor Pritzker into law in the coming days. This legislation is the result of an "agreed bill" process, which brought together stakeholders from labor, business management and the Illinois legislature. Business and labor reached an agreement following substantial negotiations. Admittedly, this agreement is not "perfect". However, as part of the final agreement, the most important feature to employers is the assurance of having an easy path to defend COVID claims in order to reduce potential significant cost increases for workers' compensation. This was critical given the Workers' Compensation Commission's emergency rule that was stopped by litigation as the rule provided no guidance to how an employer would be able to rebut the presumption.
The change in the law allows access to the presumption by all essential employees defined in the Governor's Executive Order who also have encounters with the public or work with 15 or more employees. It also covers police fire, paramedics, EMTs, correctional officers and health care workers.
The law also allows employers to rebut those claims using an ordinary proof standard versus "clear and convincing" or a "preponderance" of evidence. This means an employer simply has to show "some evidence" that the employee could have contracted the virus outside their employment. In addition, employers may rebut the presumption if they engaged and enforced measures following CDC or Illinois Department of Public Health guidelines.
The legislation also includes the following:
- An employer's insurance experience modification will not change due to COVID claims;
- A home or residence is not the workplace for purposes of a receiving the COVID presumption;
- The presumption ends on December 31, 2020. Labor's original proposal was open-ended;
- Employers receive a TTD offset for employees that received paid leave, wages or unemployment insurance benefits paid to the worker pursuant to the CARES Act;
- The employee has to have been exposed and contracted the virus. Simple exposure does not qualify. The Governor's original rule-and Labor's proposal--did not even require an employee to show that they had contracted the virus; and
- To access the presumption, an employee, before June 15, has to have a positive diagnosis or medical test; on or after June 16, a positive test is required. Again, the Governor's rules and labor's proposal did not require a positive diagnosis or test to get benefits.
Nothing prevents a worker to pursue a workers' compensation claim whether they have the presumption or not. The presumption is an important step in the workers' compensation process because with it the burden of proof shifts to the employer to prove that the employment was not the cause of the injury. Without the presumption, the burden of proof is the employee's to prove their employment caused the injury.
Unemployment Insurance
After over a week of negotiations, business and labor agreed to important changes to Illinois unemployment insurance law, also as part of HB 2455.
The agreement implements the three changes from the CARES Act:
- Waiver of the one-week waiting period for employment benefits until December 31, 2020;
- Provides for a maximum of 20 weeks Extended Benefits (EB) instead of 13 weeks;
- "non-charging" of unemployment benefit charges to an employer if COVID-19 was the cause of the lay-off ;
Without these change, Illinois would not be able to receive the approximately $2 billion in federal funds to pay benefit expansions under the CARES Act. Also, at risk is over $20 million in federal funds to assist the Illinois Department of Employment Security in upgrading its IT systems. Finally, the waiver of benefit charges is meant to help those employers hit hardest by COVID-19 layoffs. The costs of this waiver will be shared by all employers.
Non-instructional education workers who are not eligible for UI benefits between the spring and fall school terms will be eligible for benefits this year. For reimbursable employers, the federal government will reimburse 50% of the benefits paid. The remaining 50% also will be shared by all other non-reimbursable employers. All disqualifications will continue for non-instructional workers, such as availability to work, misconduct, etc.
To bring the stakeholders back to the table, benefit reductions and tax increases, AKA speed bumps, will be equalized at $500m and will go into effect January 1, 2022 if they are not changed.
Finally, both labor and the employer organizations agree to cooperatively advocate for federal funding assistance to address a projected UI Trust Fund deficit of $8 to $14 billion by the end of the calendar year.
Reopen Illinois
Since the start of the public health emergency, Governor Pritzker has issued 37 Executive Orders (with more expected in the coming days, weeks and months). Prior to the special session, the Governor's executive authority had become an increasing focus of lawmakers - particularly Republicans - who believed that the legislature's continued hiatus allowed the Executive Branch to continue making important policy decisions without appropriate legislative input. The Governor's executive authority has also become the source of an increasing number of lawsuits filed challenging his authority - many of which are still pending - but as lawmakers returned to Springfield, it was expected that his authority, including his plans to reopen the state under the Restore Illinois plan, would be a focus of legislative activity.
The Illinois Chamber working with Senate Republican Leader Bill Brady introduced
SB 3993
to establish safe place of business protocols on or before May 30, 2020. It also amended the Illinois Emergency Management Agency Act to provide that after an initial proclamation declaring that if a disaster exists, the Governor may only extend that declaration or make further proclamations regarding the same disaster if the General Assembly passes a resolution within 5 calendar days that approves the extension or further proclamation.
While the General Assembly did not take any sweeping action to formally solidify the Governor's emergency authority powers, including the ability to issue multiple emergency declarations after the initial 30 days, nor did they make any statutory changes to the Governor's reopening plan, the General Assembly did pass an omnibus bill that included authorization of limited oversight over the plan.
SB 2135
, as amended, contained a number of provisions of note summarized below, but it was only able to pass out of the General Assembly after the House removed two controversial provisions that would have allowed the Legislature to convene and vote remotely, as well as allowed for the temporary delay of Freedom of Information Act (FOIA) requirements. As passed, HB 2135 includes:
* A new Restore Illinois Collaborative Commission to "participate in and provide input on plans to revive the various sectors of the state's economy in the wake of the COIVD-19 pandemic." The commission will consist of 14 appointed lawmakers (8 Democrats and 6 Republicans) in collaboration with the Department of Commerce and Economic Opportunity (DCEO). Meetings may be convened to address revitalization efforts for the various sectors of the state's economy. DCEO will be required to provide monthly reports to the General Assembly regarding "current and proposed" revitalization efforts. The first report is due July 1.
* Creation of a 10-person task force of members representing the Department of Insurance and the insurance industry to study business interruption insurance.
Progressive Income Tax Constitutional Question Wording
Lawmakers also approved
Senate Joint Resolution 1
, which contains the wording for a graduated income tax ballot question that will also be mailed to voters ahead of the November election. Per the resolution, the language will include a background explanation to voters, along with presentations of the arguments for and against the proposed constitutional change.
The Illinois Chamber also participates in a coalition of organizations opposing the constitutional amendment to change our income tax system from a flat tax to a progressive tax. Members can access resources to educate their employees, family members, friends and neighbors as to why they should vote "NO" on the constitutional change. Go to: www.noprogressivetax.com
2020 Voting by Mail Expansion
The General Assembly also passed changes targeting the upcoming 2020 November election,
SB 1863
and
HB 2238
(clean-up to SB 1863), to expand the state's current vote-by-mail program amid public health concerns over voting and elections during the COVID-19 pandemic. Under the changes, any person who has voted in the past two years (2018 General Election, 2019 Consolidated Election, or 2020 Primary Election) will receive an application for a ballot in their mailbox
.
General Election Day, November 3, 2020, will be a state holiday for schools and state offices so that those facilities can be used as polling places (to replace nursing home polling places). In-person voting, either early or on Election Day, is still allowed, but local election authorities can set up drop-boxes for depositing ballots and can also develop curb-side voting. The expanded vote-by-mail program only applies to this year's election.
Key Issues That Failed to Advance
New Liability for Failure to Provide PPE
:
HB 5769
, sponsored by Rep. Andre Thapedi (D-Chicago), creates the Personal Protective Equipment Responsibility Act requiring an employer designated as an essential employer under a disaster proclamation issued pursuant to the Illinois Emergency Management Act or an executive order issued pursuant to the disaster proclamation to provide personal protective equipment to independent contractors and to all employees during the duration of the disaster proclamation or executive order. Allows a court to grant an injunction, revocation, forfeiture, or suspension of any license, registration, certificate, or other evidence of authority of any person to do business in this State. Authorizes the recovery of damages, including punitive damages, and attorney's fees.
Paid Leave:
SB 471
was approved by the General Assembly but the paid leave provisions were removed from the legislation. We fully expect this issue to be resurrected for the fall veto session.
Medical Marijuana
: We had worked out an agreement with Rep. Bob Morgan prohibiting an employer from disciplining or firing a worker using medical marijuana solely for failing a drug test. Our agreement, found in
HB 4623
, exempted a broad list of "safety sensitive positions" from the limitation. It also clarified the Right to Privacy in the Workplace Act related to the lawful use of medical marijuana.
As we look to the future, we see a growing interest in the legislature to challenge employers with more regulation and liability in the following ways:
- Restrictions on how employers schedule hourly employees;
- Restricting use of independent contractors;
- Expansion of employment discrimination protections; and
- Expanding rights of felons when being considered for employment.
