On March 23, 2021 Governor Pritzker signed into law Senate Bill 1480 which makes several meaningful changes to the Illinois Human Rights Act (“IHRA”). One significant change under the new law is that employers may not use criminal records when making employment decisions unless they consider specific factors and take certain steps before making a final employment decision. The law goes into effect immediately.

Employment Decisions Based on a Conviction Record Violate the IHRA

It is now a violation of the IHRA to “use a conviction record” as a basis for any employment-related decision, unless the employer can establish either:

• there is a “substantial relationship” between the criminal conviction and the employee’s job; or
• hiring or retaining the employee would create an “unreasonable risk” to a specific individual or the public.

To determine whether an “unreasonable risk” exists, employers must consider “whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” Accordingly, in evaluating whether an “unreasonable risk” exists, employers must evaluate the following six factors:

1. the length of time since the conviction;
2. the number of convictions that appear on the conviction record;
3. the nature and severity of the conviction and its relationship to the safety and security of others;
4. The facts or circumstances surrounding the conviction;
5. the age of the employee at the time of the conviction; and
6. evidence of rehabilitation efforts.

Interactive Process

If an employer determines that one of the two exceptions applies, the employer must engage in an interactive process with the employee or applicant. The employer is required to notify the employee or applicant in writing of its preliminary decision that the employee’s conviction record disqualifies the employee. This notice must include:

1. notice of the conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
2. a copy of the conviction history report, if any; and
3. an explanation of the employee’s right to respond to the employer’s preliminary decision before it becomes final. This explanation must inform the employee that the response may include “submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.”

Upon receipt of the employer’s notice, the employee has up to five business days to provide a response before the employer makes a final determination.

Written Final Decision

Before making a final decision, the employer must consider any information submitted by the employee. If the employer determines that the employee or applicant is disqualified “solely or in part because of the employee’s conviction record,” the employer must provide another written notice to the employee. The second notice must include the following:

1. notice of the conviction or conviction(s) that are the basis for the final decision and the reasoning for the disqualification;
2. any existing procedures available to the employee to challenge the decision or request a reconsideration; and
3. a statement that the employee has the right to file a charge with the Illinois Human Rights Department.

Practical Considerations

Illinois employers should reconsider how they will use criminal background checks in the future. While the law does not prohibit an employer from obtaining criminal background checks, it places a significant burden on employers if they want to use this information to make employment-related decisions.

Given the burdensome notice obligations, it may be more practical for employers to forego the use of criminal background checks altogether, unless there is a particularly compelling business reason for doing so. Due to the complexities of this decision, employers should discuss this matter with their employment lawyer. If an employer intends to continue using criminal background checks, it will need to implement appropriate procedures and policies to ensure compliance with the new law.

For additional help navigating these issues, feel free to contact Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at wlawrence@lgattorneys.com, or Joseph A. LaPlaca, an associate attorney at Levin Ginsburg, at jlaplaca@lgattorneys.com.

As the COVID-19 vaccines are currently being distributed, employers must address various issues relating to the transition of employees back to the office.  Below is a quick general guide concerning what employers can and cannot ask their employees concerning COVID-19:

Can an employer take an employee’s temperature?

Yes. Generally, measuring body temperature is a medical examination.  Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.

Can an employer ask an employee if they have had COVID-19?

Yes. Employers may ask all employees who will be physically entering the workplace if they have had COVID-19 or symptoms associated with COVID-19, as well as ask if they have been tested for COVID-19.

Can an employer ask an employee if they are having COVID-19 symptoms?

Yes.  During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus.

Can an employer send an employee home during the COVID-19 pandemic if they have COVID or symptoms associated with it?

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

Can an employer ask an employee if any member of their household has had COVID symptoms or has tested positive?

No.  The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members.  GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.

Can an employer require employees to have a COVID-19 test?

The ADA requires that any mandatory medical test of employees be job related and consistent with business necessity. Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19, because an individual with the virus will pose a direct threat to the health of others.  Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.

Can an employer require employees to notify the employer if they test positive with COVID-19?

Yes.

Can an employer require employees to adopt infection-control practices?

Yes.  Regular hand washing, cough/sneeze etiquette and proper tissue usage and disposal may be required.

Can an employer require employees to wear PPE (masks, gowns, etc.) designed to reduce the spread of COVID-19?

Yes. An employer may require returning workers to wear personal protective gear and observe infection control practices.

Can an employer ask an employee if he or she has been vaccinated?

Yes. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a prohibited disability-related inquiry.

Can an employer require employees to have a vaccine?

Yes. Employers are permitted to encourage and even require vaccination before allowing employees to return to work. However, mandatory vaccination policies will require careful planning, training, and transparency to implement effectively and minimize risks.

Can an employer exclude employees from the workplace if they have not had a vaccine?

Yes, but only after doing an individualized assessment to determine if an employee poses a direct threat and concluding there is no other possible accommodation.

Record-Keeping

If an employer is currently complying with the Health Insurance Portability and Accountability Act (“HIPAA”), then it is already prepared to deal with the collection, storage, and disposal of an employee’s Personal Health Information (“PHI”) collected as a result of COVID-19.  However, the Occupational Safety and Health Administration’s (“OSHA”) most recent guidance on controlling COVID-19 encourages all employers, including non-health-related companies, to put a COVID-19 prevention program into practice.  OSHA encourages record-keeping as part of such a program.  Thus, the days of avoiding the storage of health-related data to potentially avoid record-keeping activities are seemingly over.  Certainly, employers in California must comply with California’s OSHA’s requirements concerning COVID-19.  The following table provides guidance for those employers who are not already HIPAA-compliant.

Can an employer store medical information it collects from employees related to COVID-19?

Yes. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.

Can an employer disclose the name of an employee to other employees when it learns that the employee has COVID-19?

No. The employer should not disclose the name of the employee who has COVID-19.  However, the CDC stated: If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA.

Can an employer keep a log of daily temperature checks before entering the workplace?

Yes, provided that the employer maintains the confidentiality of this information.

Can an employer keep records of employees who have tested positive for COVID-19?

Yes, if confidentiality is kept.  Employers should make every effort to limit the number of people who get to know the name of the employee.

Can the employer notify other employees that an employee has tested positive for COVID-19?

Yes.  The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity.

For almost a year since the onset of COVID-19, employers have been collecting and using data to track and trace the spread of the virus.  Employers must be vigilant when collecting and utilizing data for tracking and tracing the spread of the virus and understand the risks of unauthorized disclosure or other potential abuses of the data.

Data Privacy and Security

Employers must develop policies and procedures to collect, use, and analyze PHI that are in compliance with relevant privacy laws.  PHI, such as information that an employee has tested positive or is having symptoms of COVID-19, must be stored separately from regular personnel files and kept confidential.  If this information is stored electronically, it must be stored in a manner which limits access to the information.

Employers should consider creating a COVID-19 task force that is responsible for handing all COVID-19 related issues within the company.  This will necessarily limit the number of people who have sensitive COVID-19 information about employees.

It is important that employers discuss these issues with their data privacy attorney.  A data privacy attorney can help employers comply with the patchwork of federal and state privacy regulations, including GDPR and HIPAA, and develop systems for the storage and use of employee PHI.

This article is intended to provide generalized guidance for employers and may or may not apply to your exact situation.  If you require specific legal advice on these or related topics, or compliance with data privacy regulation that may affect your business, please contact Natalie A. Remien, a partner in the data privacy practice at Levin Ginsburg at nremien@lgattorneys.com or Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg at wlawrence@lgattorneys.com.

Restrictive covenants are contractual terms that restrict an employee’s ability to work for a competitor. Historically, these covenants were often used to prohibit high-level executives or employees with proprietary knowledge from working directly for a competitor. Today, restrictive covenants are increasingly used for even lower-level employees.

Examples of restrictive covenants are: “employee may not compete directly or indirectly with employer for a period of two (2) years after leaving the company,” or “employee may not do business within a 50-mile radius of the business after employment termination.” Under Illinois law, a restrictive covenant must be:

1. necessary to protect a legitimate business interest;
2. limited in terms of duration, geographic scope, and prohibited activity;
3. supported by sufficient consideration; and
4. ancillary to a valid employment agreement or sale of a business.

In 2016, the Illinois Freedom to Work Act (“IFWA”) was passed, which prohibited employers from implementing restrictive covenants for low-wage employees. IFWA defines low-wage employees as “an employee whose earnings do not exceed the greater of (1) the hourly rate equal to the minimum wage required by the applicable federal, state, or local minimum wage law or (2) $13.00 per hour.”

On January 8, 2021, the Illinois legislature introduced House Bill 789 (“Bill 789”), which seeks to expand the scope of IWFA as follows:

1. covenants not to compete are neither valid nor enforceable unless the employee’s actual or expected yearly earnings exceed $75,000. Every 5 years, the yearly earnings figure will increase by $5,000;
2. covenants not to solicit are neither valid nor enforceable unless the employee’s expected yearly earnings exceed $45,000. Every 5 years, the yearly earnings figure will increase by $2,500;
3. covenants not to compete are neither valid nor enforceable if the employee subject to the covenant was terminated or furloughed due to the COVID-19 pandemic. Additionally, covenants not to compete are neither valid nor enforceable if the employee is terminated or furloughed under circumstances that are similar to the COVID-19 pandemic (such “circumstances” are not defined by Bill 789) unless enforcement of the covenant includes the payment of the employee’s base salary for the period of enforcement of the covenant, minus compensation received by the employee through subsequent employment; and
4. the employer must advise its employees in writing to consult with an attorney before agreeing to a non-compete or non-solicitation clause. Additionally, the employer must supply a copy of the clause at least 14 days before execution for the employee’s review.

Furthermore, the legislature also established five components necessary for a valid restrictive covenant. A restrictive covenant is void unless:

1. the employee receives adequate consideration;
2. the covenant is ancillary to a valid employment relationship;
3. the covenant is no greater than is required to protect the legitimate business interest of the employer;
4. the covenant does not impose an undue hardship on the employee; and
5. the covenant is not injurious to the public.

If an employer seeks to enforce a restrictive covenant and fails to succeed because the covenant is deemed unenforceable, Bill 789 would require the employer to pay the employee’s reasonable attorneys’ fees and costs. Significantly, Bill 789 does not apply retroactively.

It is expected that Bill 789 will pass in some form and would go into effect on June 1, 2021. Employers should consider whether they want to implement restrictive covenants in some form prior to Bill 789 being enacted into law, as those covenants will be grandfathered in.

For additional help navigating these issues, feel free to contact Roenan Patt, an attorney in the employment and business law practice at Levin Ginsburg, at rpatt@lgattorneys.com or Joseph A. LaPlaca, an attorney at Levin Ginsburg, at jlaplaca@lgattorneys.com.

As a result of recent amendments to the Illinois Human Rights Act (IHRA), employers in Illinois are required to provide annual sexual harassment training to employees who (1) work in Illinois, (2) may perform work in Illinois, or (3) regularly interact with Illinois employees. Employers have largely ignored these new requirements in the wake of the ever-changing environment created by COVID-19, but there is still time to comply. The training must occur on or before December 31, 2020. To help our clients comply with the law, Levin Ginsburg has been providing updated sexual harassment training to its clients virtually.

The Illinois Department of Human Rights provided a model PowerPoint program that employers can use to comply with the law. However, many employers prefer to offer their own training tailored to their business and policies. The law allows employers to use their own training, provided it meets or exceeds the statutory standards. At a minimum, the training must include:

• an explanation of sexual harassment consistent with the IHRA;
• examples of conduct that constitutes unlawful sexual harassment;
• a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
• a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.

If your business is a restaurant or bar, the statute provides additional requirements, including providing each employee a written sexual harassment policy. Illinois recently issued a model training program for restaurants and bars, and this additional training must include the following additional topics:

• specific conduct, activities, or videos related to the restaurant or bar industry;
• an explanation of manager liability and responsibility under the law; and
• English and Spanish language options.

As the December 31, 2020 deadline is quickly approaching, it is important for employers to take steps to meet their obligations imposed by Illinois law. If you have questions about how Levin Ginsburg can help you conduct this training virtually for your employees, please reach out to

Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at

312-368-0100 or wlawrence@lgattorneys.com.