On April 22, 2020, Chicago Mayor Lori Lightfoot, with the backing of several Aldermen, introduced the COVID-19 Anti-Retaliation Ordinance (the “Ordinance”), which, if enacted, would prohibit Chicago employers from retaliating against employees for obeying a public health order requiring an employee to remain at home as a consequence of COVID-19.  This reflects a growing trend among states and local governments in enacting protections against retaliation amid the COVID-19 pandemic.

The Ordinance would prohibit employers from demoting or terminating a “Covered Employee”[1] for obeying an order issued by the Mayor, the Governor of Illinois or the Chicago Department of Public Health requiring the Covered Employee to:

(1) Stay at home to minimize the transmission of COVID-19;

(2) Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;

(3) Obey a quarantine order issued to the Covered Employee;

(4) Obey an isolation order issued to the Covered Employee; or

(5) Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.

An employer would also be prohibited from retaliating against a Covered Employee for obeying an order issued by the employees’ treating healthcare provider relating to subsections (2), (3) and (4) above.

Finally, the anti-retaliation protections would extend to Covered Employees who are caring for an individual who is subject to subsections (1)-(3) above, and would apply even if workers have exhausted any earned sick-leave time available pursuant to Chicago’s Paid Sick Leave Ordinance.

Affirmative Defense

The Ordinance would allow an employer to assert an affirmative defense if it relied upon a reasonable interpretation of the public health order at-issue and, upon learning of the violation of the Ordinance, cured the violation within 30 days.

Penalties/Damages

The Ordinance has teeth:  violations can lead to fines of up to $1,000 per offense per day, and Covered Employees who have been retaliated against may pursue the following recovery in a civil action: (i) reinstatement; (ii) damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place; (iii) actual damages caused directly by the retaliatory action; and (iv) costs and reasonable attorneys’ fees.

Next Steps

The Ordinance has been referred to the Chicago Committee on Workforce Development for further deliberation.

A Growing Trend

The protections the Ordinance would afford to employees are consistent with a growing trend among state and local governments in response to the COVID-19 crisis.  Similar protections have been established through emergency orders or rules in New Jersey, Michigan and Washington which prohibit employers from disciplining or terminating employees for requesting or taking time off after contracting or, in some circumstances, being exposed to COVID-19.  Other states, such as New York and California, have issued guidance applying existing federal, state, and local anti-discrimination and anti-retaliation laws to prohibit employers from discriminating against or refusing to provide reasonable accommodations for employees who contract or are otherwise impacted by the virus. As state legislative and executive responses continue to rapidly evolve, employers should ensure that they are familiar with the latest guidance in each state where their employees are located.

[1] “Covered Employee” generally means any employee who, in any particular two-week period, performs at least two hours of work for an employer while physically present within the geographic boundaries of the City of Chicago.  Chicago, Ill., Mun. Code § 1-24-010.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm’s Whistleblowing & Retaliation Group. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination, harassment and retaliation; wage-and-hour laws; breach of employment contract…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm’s Whistleblowing & Retaliation Group. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination, harassment and retaliation; wage-and-hour laws; breach of employment contract; and restrictive covenants (e.g., non-competition agreements). Steven is also at the forefront of defending whistleblower retaliation claims, and routinely conducts investigations arising from whistleblower reports. He has successfully tried cases to verdict in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S. District Court for the Northern District of Illinois. He has also testified in defense of his investigations in federal court.

Photo of Edward Young Edward Young

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all…

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all aspects of employment law, with a concentration on litigating complex employment disputes of all types before federal and state courts throughout the country, the U.S. Equal Employment Opportunity Commission, state and local human rights commissions and arbitral tribunals (e.g., FINRA and AAA).  In particular, Eddie has successfully litigated employment-related disputes alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblower retaliation, wage and hour violations, including employee misclassification claims, breach of contract, defamation, fraud and other business-related torts.  Eddie has obtained a world-wide injunction to enforce a client’s non-competition restriction on a former executive, successfully defended a client through summary judgment and appeal against retaliation claims brought by a former General Counsel, represented Fortune 500 companies in defense of high-profile harassment claims associated with the #metoo movement, and provided representation to several professional sports leagues.  He also has significant appellate experience, including successfully representing clients before the U.S. Circuit Court of Appeals for the First, Second and Seventh Circuits, as well as before the United States Supreme Court.  Eddie often draws on his litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful training, counseling and developing robust employment policies.

Working in a wide range of industries, Eddie represented clients in food services, financial services, medical devices, telecommunications, higher education, sports, retail, real estate and others.

Eddie has been recognized as “One to Watch” by Best Lawyers in America since 2021 and as a “Rising Star” by Super Lawyers since 2017. He also regularly advises clients, writes and speaks on cutting-edge legal issues, including the use of Artificial Intelligence in the workplace, and legal issues arising from the collection and use of employee biometric information.

Eddie maintains an active pro bono practice, including on-going representation of a certified class of approximately 65,000 visually disabled Chicagoans in litigation challenging the City’s lack of accessible pedestrian crosswalks.  Eddie is also a member of the Firm’s Pro-Bono Committee and is a three-time recipient of the Firm’s “Golden Gavel” award for his significant pro bono contributions.

Prior to joining Proskauer, Eddie was a cum laude graduate from Loyola University Chicago School of Law. He also obtained a Master’s Degree in Human Resources and Industrial Relations from Loyola University Chicago Graduate School of Business. He began his practice at a national management-side employment law firm, and has also worked in the corporate human resources department of a national tax consulting firm and as a Fellow with the Illinois Human Rights Commission.