Monthly Archives: March 2021


By: Sally A. Piefer

Last week, the Illinois Governor signed legislation which amends three Illinois laws which will impact employers with operations in Illinois.

Criminal Conviction Information

As of March 23, 2021, employers in Illinois may not use a criminal conviction (felony, misdemeanor, probation, or imprisonment) as a basis for making employment decisions—unless (1) there is a “substantial relationship” between the conviction and the job, or (2) where the conviction poses an “unreasonable risk” to property, or to the safety or welfare of specific individuals, or the general public. Employers who are contemplating employment decisions using these exceptions must consider the following six factors:

  • The length of time since the conviction;
  • The number of convictions in total the individual has;
  • The nature and severity of the conviction, and its relationship to the safety and security of others;
  • The facts or circumstances surrounding the conviction;
  • The age of the individual at the time of the conviction; and
  • Evidence of rehabilitation efforts.

Employers must document their efforts to evaluate each factor before making an employment decision.

In addition, if you intend to use a conviction record to make an employment decision, the law requires that you engage in an “interactive assessment” by notifying the individual in writing of the potential use of the conviction record. This written notice must provide detailed information about the potential employment decision being contemplated due to the conviction and must further give the applicant or employee an opportunity to respond and provide additional information before the employer makes a final decision. The employee (or applicant) has 5 business days to provide the response. If the employer still decides to take adverse employment action, the employer has to provide a second notice which describes the employer’s reasoning for the employment decision and it must notify the individual of his/her right to file a complaint with the Illinois Department of Human Rights (IDHR) if the individual disagrees with the employer’s use of the conviction record.

The requirements of the new law are very similar to the requirements employers must follow under the Fair Credit Reporting Act (FCRA). Employers who have operations in Illinois should analyze their policies and procedures and should make sure they are following the law and seeking counsel before withdrawing an employment offer or otherwise taking adverse action against an employee because of a criminal conviction.

Expanded Whistleblower Retaliation Protections for Employees

Effective March 23, 2021, the new law also allows employees to sue employers for certain whistleblowing activities. Specifically, the law, which amends the Illinois Equal Pay Act, prevents employers from retaliating against an employee who engages in the following:

  1. discloses or threatens to disclose to a supervisor or to a public body any activity, inaction, policy, or practice the employee reasonably believes violates a law, rule, or regulation, or
  2. assists or participates in a proceeding to enforce the Equal Pay Act.

Retaliation is defined broadly in the new law and includes simply issuing a “reprimand” to the employee.

Furthermore, to prevail on a claim, the employee (or former employee) need only establish that his/her whistleblowing activity was a “contributing factor” to the employment decision. An employer may defend against such a claim by showing through “clear and convincing evidence” that it would have made the same decision in the absence of the employee’s protected activity. A prevailing employee can obtain reinstatement, double back pay (with interest), and attorney’s fees and costs.

Equal Pay Certification

Employers with 100 or more employees in Illinois must now obtain an “equal pay registration certificate” from the state and provide EEO-1 type reporting to the state (or certify that it is exempt).

Employers will have until March 2024 to obtain the equal pay registration certificate from the Department of Labor (DOL). The certificate has a $150 filing fee, and renewals will be required every 2 years. The certificate requires the following acknowledgements:

  • The employer is in compliance with Title VII of the Civil Rights Act of 1964, the federal Equal Pay Act, the Illinois Human Rights Act, the Illinois Equal Wage Act, and the Illinois Equal Pay Act;
  • The employer’s average compensation for female and minority employees is not “consistently below” the average compensation for male and non-minority employees within each major job category in the employer’s EEO-1 report;
  • The employer does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  • Wage and benefit disparities are corrected when identified to ensure compliance with the state and federal law;
  • How often wages and benefits are evaluated to ensure compliance with applicable state and federal laws; and
  • Whether the employer, in establishing wages and benefits, uses any of the following: (a) a market pricing approach; (b) state prevailing wage or union contract requirements; (c) a performance pay system; (d) an internal analysis; or (e) another approach used to determine what level of wages and benefits are paid to employees (if another approach is used the employer must describe the approach).

Employers who do not obtain an equal pay registration certificate, or in cases where the certificate is revoked or suspended following an investigation or audit, will be assessed a penalty of 1% of the employer’s gross profits.

Employers should begin evaluating now whether they could obtain an equal pay registration certificate and, if not, what steps will be necessary to obtain the certificate prior to March 2024.

New EEO Reporting Requirements

Finally, employers who are currently required to file federal EEO-1 reports will be required, as of January 1, 2023, to also file with the Illinois Secretary of State “substantially similar” data relating to employees’ gender, race, and ethnicity. Be advised that the Secretary of State intends to publish data on gender, race and ethnicity of each employer’s employees on its website.

Next Steps

With all of these changes, employers should begin evaluating policies and procedures currently being used and determine whether changes must be made. Employers will also need to determine whether HR and supervisors or managers need to be trained in connection with the new whistleblower and criminal conviction laws in order to minimize unnecessary lawsuits.

If you have questions about these new laws, please contact Sally Piefer at 414-226-4818 or, or contact your regular Lindner & Marsack attorney.

What You Need to Know About the ARPA

By: Sally A. Piefer and Samantha J. Wood

Last week, the American Rescue Plan Act of 2021 (ARPA) was signed into law.  This is a large and detailed piece of legislation that has several components that directly affect employers.

FFCRA Leave Expansion/Extension

Like the prior COVID-19 stimulus/relief bill that was discussed here, the ARPA allows employers covered by the FFCRA to continue to voluntarily provide paid FFCRA leave and receive the tax credit associated with such leave through September 30, 2021.

If you recall, the leave provisions of the FFCRA covered all employers with fewer than 500 employees, and provided two buckets of leave:

  • Emergency FMLA (EFMLA), which provided paid leave for employees who were unable to work (or telework) because they need leave to care for a child (under age 18) if the child’s elementary or secondary school or place of care had been closed or if the child care provider was unavailable because of a public health emergency.
  • Emergency Paid Sick Leave (EPSL), which provided limited paid sick leave to employees who were unable to work (or telework) because of leave needed for any of the following reasons:
    1. The employee is subject to a quarantine or isolation related to COVID-19;
    2. The employee had been advised by a health care provider to self-quarantine due to COVID-19;
    3. The employee was experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    4. The employee was caring for an individual subject to a state, federal or local quarantine or isolation related to COVID-19;
    5. The employee was caring for their child if the child’s school or place of care had been closed, or the child care provider was unavailable due to COVID-19 precautions; or
    6. The employee was experiencing any other substantially similar conditions specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.

To benefit employers, the FFCRA provided a refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer – subject to the FFCRA’s maximum payments.

In December 2020, the COVID-19 stimulus/relief bill was passed to allow employers to voluntarily continue granting employees EFMLA and any remaining EPSL, and receive the associated tax credit through March 31, 2021.

Now, the ARAP extends and expands the leave and associated tax credits for voluntarily providing paid leave through September 30, 2021.  The notable expansions are as follows:

  1. While the prior stimulus bill only allowed employees to use the remainder of their EPSL, the ARPA provides that employers may grant employees (and receive the associated tax credit for providing) a new ten-day bank of EPSL beginning on April 1, 2021.
  2. While the FFCRA and the prior stimulus bill allowed employees to take EPSL for six reasons (as delineated above), the ARPA allows EPSL to be taken for two additional reasons: (a) to obtain a COVID-19 vaccine; and (b) to recover from any adverse reactions to the vaccine.
  3. While the EFMLA was previously only available to employees who were unable to work or telework due to a COVID-related closure of a child’s school or childcare, the ARPA now allows EFMLA to be taken for all of the qualifying uses of the EPSL.
  4. While the FFCRA originally provided that the first two weeks of EFMLA were unpaid, ARPA has deleted that unpaid two-week provision and will allow the entire twelve weeks of EFMLA to be paid.
  5. The ARPA provides that employers may not claim the tax credits for providing EPSL or EFMLA if it only provides the leave to highly compensated employees, full-time employees, or employees with a certain tenure.

Mandatory Subsidies for COBRA Premiums

The ARPA also requires employers to pay for up to 6 months of the COBRA premiums at 100% of the monthly premium. Specifically, this subsidy applies to any employee who was involuntarily terminated (other than for gross misconduct) or whose hours were reduced and whose COBRA period includes any period of time between April 1, 2021 and September 30, 2021. Employees who voluntarily leave employment are not eligible for the subsidy.

Former employees who did not originally elect COBRA coverage are also entitled to the assistance and a new special election period. The subsidy will cover not only group health coverage, but also group dental and vision coverage, and will only apply to premiums between April 1, 2021 and September 30, 2021.

The ARPA also permits employers to decide whether they will allow an eligible former employee to switch from the coverage they had in effect at the time of the involuntary termination to a lower cost group health plan option. Eligible individuals are prohibited from opting into a higher cost group plan option.

Employers will be allowed to treat the subsidy as a credit against their share of Medicare taxes. If the credit exceeds the amount of tax owed in any quarter, the excess will be refundable.

Employers are required to provide notice of the right to elect fully subsidized COBRA to all eligible individuals. The notice contains several specific pieces of information. The Department of Labor (DOL) has been charged with preparing 2 model notices, which should contain all of the required language. The model notices are supposed to be available by April 10, 2021. In addition, employers will be obligated to provide written advance notice when the subsidy is scheduled to expire.

While we wait for the DOL forms, you should begin to identify which COBRA beneficiaries became eligible for COBRA due to an involuntary termination (other than misconduct) or reduction in hours during the last 18 months (29 months for individuals eligible for COBRA due to a disability) to determine who will be eligible for the new notices. Employers should also contact their group health plans to determine whether the employer will be responsible for issuing the new COBRA notices or whether the plan will assume those responsibilities. Now may also be a good time to review any contracts you have which transfer the obligation to provide COBRA notices so that your business is fully protected in the unfortunate event that a notice is not timely provided.

Extended Federal Unemployment Insurance Assistance

The ARPA also extends several unemployment insurance programs and initiatives through the week ending September 6, 2021, including:

  1. The Pandemic Unemployment Assistance Program, which provides benefits to independent contractors, business owners, self-employed workers, and similar workers who do not qualify for regular state unemployment benefits;
  2. Most states cap unemployment at 26 weeks. The CARES Act added an additional 13 weeks and the December 2020 Consolidated Appropriations Act (CAA) added an additional 24 weeks. ARPA now extends benefits to 53 weeks, which means that an eligible person can receive up to 79 weeks of unemployment benefits – the original 26 weeks plus 53 weeks of federal extension.

The program which provides an additional $300 per week in benefits for each person receiving unemployment benefits, in addition to what s/he is receiving through regular state unemployment benefits.

CDC Issues Interim Guidance on Vaccinations

By: Samantha J. Wood

Last week the Centers for Disease Control and Prevention (CDC) issued Interim Public Health Recommendations for Fully Vaccinated People.  This guidance can be found here.

The CDC stated that it considers an individual to be “fully vaccinated” two weeks after they have either received the second dose of the two-dose series of the Pfizer or Moderna vaccine or two weeks after they have received the single dose Johnson and Johnson vaccine.

After an individual is fully vaccinated, the CDC states that the individual:

  • Can visit with other fully vaccinated individuals indoors and in private settings without wearing masks or physical distancing;
  • Can visit with unvaccinated individuals from a single household at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
  • Need not quarantine and test after a known exposure so long as the individual remains asymptomatic.

Despite this guidance, however, the CDC continues to recommend that employers maintain routine workplace screening programs and preventative measures, including masking, physical distancing, gathering restrictions, and sanitation and cleaning procedures. Additionally, for employees in high-density workplaces, such as meat processing and manufacturing plants, the CDC continues to recommend that vaccinated individuals are tested after an exposure to COVID-19.

This guidance is consistent with that issued by the Occupational Safety and Health Administration (OSHA) in January 2021, wherein OSHA encouraged employers to continue to follow protective measures regardless of whether employees are vaccinated.

Employers should also be cautious in modifying or discontinuing preventative measures, as it could lead to safety complaints, could spark discussions about who is/is not vaccinated and the reasons behind that decision, and discrimination or disparate impact concerns for those who are not being vaccinated due to religious or disability reasons.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about this guidance or any other labor or employment issue involving your business, please contact us at any time.