IL AG PAC Opinion 20-007 Article Summary SAB

Don’t Hit Pause! – Illinois Attorney General Issues PAC Formal Opinion 20-007 Clarifies Requirements for Livestreamed Remote Public Meetings under the Open Meetings Act

By: Scott Brunton

During the global COVID-19 pandemic, American society has proven resilient in many ways. We have substantially altered the ways in which we carry out business transactions and go about our daily lives. Various government health agencies have helped to guide us towards best practices to ensure that we reduce the spread of the novel corona virus. As leaders across the State sought to balance public health concerns on one hand, there has been a continued need to preserve certain rights held by citizens, broadly, on the other. Namely, the Open Meetings Act (OMA) (5 ILCS 120/1, et seq.) requires public bodies to hold meetings and deliberations openly. With a recent amendment to OMA, public meetings can now occur by way of a virtual format during the pandemic.

But, as recently found by the Illinois Attorney General Public Access Bureau (AG-PAC), conditions under which virtual meetings can occur stand in contrast to the traditional OMA requirements that require in-person public meetings. See Public Access Opinion 20-007 (November 24, 2020). Upon issuing this formal opinion, the AG-PAC found that the Village of Roanoke Board of Trustees violated OMA by muting a discussion to hold a brief sidebar – because OMA requires that virtual meetings allow members of the public to contemporaneously hear all discussion during the open portion of the meeting.

The recently enacted Section 7(e) of OMA allows public bodies to hold deliberations via audio or video conferencing so long as ten requirements are fulfilled: (1) The Governor issues a Disaster Declaration; (2) the head of a Public Body determines that an in person meeting is not practical or prudent because of a disaster; (3) all members of a Public Body can hear each other and participate in discussion; (4) the Public Body makes alternative arrangements and provides notice to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes; (5) one member of a Public Body is physically present at the meeting location; (6) all votes are conducted by roll call; (7) notice of meeting provided to the public with at least 48 hours’ notice; (8) each member of the Public Body participating remotely are considered present; (9) a verbatim record of the meeting must be provided to the public; (10) the Public Body bears all costs associated with the meeting (5 ILCS 120/7(e)).

Initially, the AG-PAC found that the Village Board meeting on September 8, 2020, was called in compliance with the ongoing Executive Orders and Disaster Proclamation issued by Governor Pritzker in relation to the enduring COVID-19 pandemic. Furthermore, the Village President’s declaration that in-person meetings were not practical and prudent during the COVID-19 pandemic was sufficient to invoke OMA’s virtual meeting format. The AG-PAC also found that the Village had complied with each of the other the provisions under Section 7(e) of the Open Meetings Act that allow the Village to hold a virtual meeting without in-person attendance of the public.

During this September 8th meeting, the Mayor and Village Clerk held a short sidebar to discuss a matter of procedure concerning a sensitive personnel matter. As such, the Mayor requested that the Zoom livestream conference audio be muted during this sidebar. The crux of the sidebar was to determine whether the matter should be discussed in closed session. The Illinois Attorney General found this action violated the virtual meeting provisions of OMA. Specifically, Section 7(e)(4) requires the public to have access to the meeting in a manner that allows the public to contemporaneously hear all discussion during the meeting.

The Attorney General reached this conclusion by engaging in a straightforward literal reading of the OMA statute. The Village Board contended that Section 7(e) was not violated because it is not uncommon for sidebars to occur during an in-person public meeting to clarify matters of procedure. However, the AG held that Section 7(e)(4) is clear and unambiguous if one adheres to the plain language of the statute. Interestingly, in the opinion, the AG-PAC expressly noted that OMA does not prohibit a member of a Village Board and another Village official from having a brief, inaudible exchange – a “sidebar” – during a regular in-person meeting. However, Section 7(e) does not contain a specific exception for a sidebar, and thus Section 7(e)(4) requires the public to hear absolutely everything during a remote open session meeting.

In light of the recent AG-PAC decision, there are some notable takeaways. One, the Illinois Attorney General, perhaps unsurprisingly, will adhere to a close reading of a statute’s plain language. Second, a simple declaration of the Village President was sufficient to involve the virtual meeting provision of OMA. Third, public bodies need to be mindful of the rules set forth in Section 7(e)(4) of the OMA. Specifically, any virtual meeting needs to be made available to the public so that citizens can hear everything. In other words, the meeting cannot intentionally be muted or paused. Last, a public body should read the provisions in Section 7(e) of the OMA carefully. Any doubts or uncertainty are grounds for consultation with the public body’s attorney.

Jeffrey Krumpe Represented the Bank In a Farm Chapter 11 Case

Jeffrey Krumpe represented the Bank in a farm Chapter 11 case, where Debtors obtained crop input financing by agreeing to sell future farm receipts to finance company, contrary to interest of Bank with prior perfected security interest in crops and proceeds, and where the Bank and the finance company claimed a competing interest in certain crop proceeds, Court determined on the facts at trial that Bank had not “authorized the disposition free of” its security interest under U.C.C. 9-315(a)(1), so that the Bank retained its lien on Debtors’ crops and proceeds notwithstanding alleged sale to finance company. Court also determined that the evidence did not support finance company’s alternative theory of Equitable Subordination under Bankruptcy Code section 510(c), finding that Bank did not exert excessive control over Debtors’ business, and thus was not an insider, and took no inequitable action with an intent to harm the finance company.

The court’s opinion can be found here:

Click to access 19-8072_Brooks%20vs%201st%20Midwest%20Bank.Opinion.pdf


Court affirms Pension Board’s denial of City’s request to intervene in firefighter line of duty disability hearing.

By: Robert B. McCoy

Illinois municipalities with a population of 5,000 or more are required to create a pension fund for firefighters or police officers in their employ. Those municipalities have a substantial financial interest in the disposition of disability pension claims, especially line of duty pension claims, made by the pension fund’s administering board. Not only do line of duty pensions pay greater benefits than “normal” disability pension (65% of a firefighter’s monthly salary for a line of duty disability versus 50% of the firefighter’s monthly salary for a non-line of disability, and up to 75% of a police officer’s monthly salary for a line of duty disability versus 50% of the police officer’s monthly salary for a non-line of disability), the award of a line of duty pension may preclude a municipality from being able to contest whether a firefighter or police officer claimant is entitled to a lifetime of health insurance benefits under the Public Safety Employee Benefits Act (PSEBA).

Local fire and police pension boards are charged with the fiduciary responsibility of administering their pension funds to ensure there are adequate financial resources to cover obligations to pay current and future retirement and disability benefits to qualified beneficiaries. To this end, pension boards are charged to hold hearings to screen out unqualified or fraudulent disability claims. But pension boards may not always adequately protect the financial interests of the cities or villages which underwrite the pension fund.

Despite their financial interest in the outcome of disability pension claims, there is no statutory right for municipalities to participate in pension board hearings. Instead, Illinois courts have ruled that pension boards have discretion to allow or disallow a municipality to intervene in a disability claim hearing.

A pension board’s discretion is not absolute. But, as recently reaffirmed by the Illinois Appellate Court in the case City of Peoria v. Firefighters’ Pension Fund of City of Peoria, 2019 IL App (3d) 190069, decided December 10, 2019, it is not error for a pension board to deny a municipality’s request to intervene in a disability claim hearing unless the municipality can show that is has something more at stake than the normal financial concerns inherent in all such cases. In the words of the Court, “[A] municipality’s interest in the proper expenditure of pension funds may warrant intervention in pension board proceedings when combined with another interest.”

In the City of Peoria case (in which this author represented the claimant firefighter), the City of Peoria argued that the Firefighters’ Pension Fund had wrongly denied it the right to intervene in the hearings to determine whether a firefighter was entitled to a line of duty disability pension. The City asserted, on administrative review of the decision before the Circuit and Appellate Courts, that the City’s potential liability for PSEBA was “another interest” which warranted it being allowed to intervene in the pension hearings.

Under the unique facts of the case, the Appellate Court disagreed. The Appellate Court noted that a pension board’s finding that a firefighter became disabled in the line of duty was conclusive as to the issue of whether a firefighter suffered a “catastrophic injury” for purposes of PSEBA eligibility. But, a duty-related disability is not all that is required for a firefighter or police officer to be eligible for PSEBA. PSEBA also requires that the injury “must have occurred as the result of the officer’s response to fresh pursuit, the officer or firefighter’s response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act.” In the City of Peoria case, the firefighter conceded that his injury did not occur as a result of an emergency (or any other PSEBA-qualifying event). Thus, because the firefighter was ineligible for PSEBA, the City could not rely on the threat of PSEBA liability as grounds to intervene in the pension case.

The City of Peoria also asserted that the City had an interest in developing a complete and accurate record in the pension board hearings. The Appellate Court acknowledged that this could be a sufficient reason for intervention by a municipality. But, under the facts presented, the pension board did not err in denying the City’s request to intervene, where the City was allowed to submit documentary evidence to the pension board, and the City failed to identify what additional evidence it would have presented had it been allowed to fully intervene, or how such evidence would have changed the outcome of the hearings.

Because it was not formally allowed to intervene in the pension hearings, the City of Peoria never became a “party” to those administrative proceedings. The Appellate Court noted that, because the City was not a party to the pension board hearings, there was an argument that the City lacked “standing” to even bring a lawsuit to challenge the pension board’s decision. The Court acknowledged that judicial review of an administrative decision (such as review of a pension board decision) is generally “limited and available only to (1) parties of record to the proceedings before the administrative agency (2) whose rights, duties, or privileges were adversely affected by the agency’s decision.” The Appellate Court declined to decide whether the City of Peoria lacked standing, where the firefighter did not file a cross-appeal on this issue, but the Court left open the possibility that, in future cases, municipalities who do not obtain party status will not have a right to seek review of adverse pension board decisions.

The chief lesson of the City of Peoria case is that municipalities cannot assume their voice will be heard when firefighters and police officers make disability claims. Municipal officers should work closely with their attorneys to identify each and every special circumstance that warrants their participation in a particular claimant’s pension board hearing. One special circumstance which may be relevant is avoidance of PSEBA liability, where doubts exist that a police officer or firefighter is really disabled, or whether the disability is really related to the employee’s duties, but PSEBA will not be an issue in all disability claims. If a municipality is denied the right to participate in a disability hearing, it needs to be prepared to describe what evidence or testimony it would have introduced at the hearing, had it been allowed to intervene. Failing to do so might result not only in an adverse pension board decision, it might result also in the municipality forfeiting its right to appeal the decision.

Illinois Supreme Court Clarifies use of Paid Sick Leave Following Birth of a Child

Teacher denied right to continue paid maternity leave following intervening summer break.

By:  Katherine L. Swise

In the case of Dynak v. Board of Education of Wood Dale School District No.7 (2020 IL 125062), the Illinois Supreme Court was asked whether accrued paid sick leave may be used to extend a teacher’s maternity leave into a new school year.  In a decision issued on April 16, 2020, the Court answered this in the negative, holding that a teacher who gave birth to a child prior to the end of the school year was not entitled to use her remaining accrued sick leave when school resumed in the fall.

The Dyank case involved a full-time teacher who gave birth to a child on the second-to-last day of the school year.  She requested and was granted use of accrued paid sick leave for those remaining 1.5 days of school.  When school resumed following the summer break, she made a request for 12 weeks of leave pursuant to the Family Medical Leave Act, and also requested to substitute 28.5 days of accrued paid leave for the first part of her FMLA leave.  The school district granted her request for FMLA leave but denied her request to substitute accrued paid sick leave, unless the teacher was able to demonstrate circumstances that allowed the use of paid sick leave pursuant to Section 24-6 of the Illinois School Code. 

Section 24-6 of the School Code provides for paid sick leave for full-time teachers, and interprets “sick leave” to include “personal illness, quarantine at home, serious illness or death in the immediate family or household, or birth, adoption, or placement for adoption.”  105 ILCS 24-6.  Section 24-6 further provides that a school district may require a doctor’s certification for absence of in excess of 3 days for personal illness or 30 days for birth.  The school district argued that, because the teacher’s request for paid sick leave in this case was more than 30 days (6 weeks) after the birth, she was not entitled to use paid sick leave without a doctor’s certification, or unless another triggering event applied.  The teacher argued that the School Code does not specify that paid sick leave for birth must be continuous or that it must be commenced or used within a certain period following the birth, and thus she was entitled to use her accrued sick leave after the summer break.

The Supreme Court rejected the teacher’s argument that she was entitled to use paid accrued sick leave at any time following the actual birth.  Rather, the Court held that the language of Section 24-6 “strongly suggests that the legislature intended that sick leave for birth must have a temporal connection to the birth.”  If a teacher could use their paid sick leave at any time after the birth, the Court reasoned, it would make no sense to require a doctor’s note for a period in excess of 30 days.  The Court further noted that there is no indication that the legislature intended sick leave for the birth of a child to operate any differently from sick leave for any other triggering event, such as personal illness or a death in the immediate family.  It would be absurd to require school districts to allow a teacher who got sick or had a death in the family over summer break to use accrued paid sick leave for those events once school resumed.  It is clear in those cases that the paid leave must be used at the time those events occur, and not at some later time of the teacher’s choosing.  Similarly, the Court held that paid sick leave for birth must be used at the time of the birth.  Thus, the Court held that the teacher in this case was not entitled to use accrued paid sick leave when school resumed after the summer break because the “triggering event”—in this case, the birth—had occurred more than 10 weeks earlier.

It is important to note that the Court’s holding in this case was limited to the facts of this case.  The Court implied that the outcome would have been different if the teacher was able to provide medical documentation supporting her need for additional sick leave so long after the actual birth.  Thus, there may be circumstances under which an employee would be permitted to use accrued paid sick leave for the birth of a child, even after an intervening summer break.  Additionally, she was granted unpaid leave under FMLA, which can be taken any time within the first year after the birth of a child. 

It is also important to note that there may be an applicable collective bargaining agreement provision that could change the outcome in a particular case.  There was no discussion of whether the teacher in this case was entitled to use her paid leave pursuant to the provisions of a collective bargaining agreement, so it is presumed that there was no applicable contract provision in this case.  However, school districts should take care to review the terms of their own collective bargaining agreement before relying on the outcome of this case to deny a teacher’s request for paid leave after an intervening summer break.  As always, be sure to consult your board attorney if you have any questions about the application of the Court’s holding in this case to your paid sick leave policy.

New Labor Law SB 1754 Requires Illinois Public Bodies To Give Unions Employee Information and Creates New FOIA Exemptions and Unfair Labor Practices

By: Joshua D. Herman

On December 20, 2019, Illinois passed SB 1754 into law, imposing new obligations on public employers.

Illinois public employers (governments, school districts, park districts and other public organizations) will now have to provide regular updates and information regarding their employees to public labor unions, as well as face new obligations to avoid engaging in unfair labor practices. Originally proposed to address limited concerns under the Illinois Governmental Ethics, Senate Bill 1754 was amended to impose new requirements on public employers in Illinois. The bill was passed as Illinois Public Act 101-0620 on December 20, 2019 and was effective immediately.

Among other changes to the law, the bill adds three new Freedom of Information Act (FOIA) exemptions to 5 ILCS 140/7.5:

“(oo) Information prohibited from being disclosed under the Illinois Educational Labor Relations Act.

(pp) Information prohibited from being disclosed under the Illinois Public Labor Relations Act.

(qq) Information prohibited from being disclosed under Section 1-167 of the Illinois Pension Code.”

New Affirmative Reporting Obligations to Unions

The Illinois Public Labor Relations Act and similar provisions of the Illinois Educational Labor Relations Act have been changed to require substantially more of public employers. Many collective bargaining agreements provide that the employer shall provide certain employee information to a union upon request. Now, unless otherwise agreed, a public employer must do the following:

At least once each month and upon request,  public employers must provide “exclusive bargaining representative[s] with a complete list of the names and addresses of the public employees in the bargaining unit, provided that a public employer shall not be required to furnish such a list more than once per payroll period. The exclusive bargaining representative shall use the list exclusively for bargaining representation purposes and shall not disclose any information contained in the list for any other purpose.” Further, when providing this list, employers must now also provide an Excel file (or other agreeable editable digital file) that includes:

  • the employee’s job title,
  • worksite location,
  • work telephone numbers,
  • identification number if available,
  • any home and personal cellular telephone numbers on file with the employer,
  • date of hire,
  • work email address, and
  • any personal email address on file with the employer.

Further, within 10 calendar days from the date of hire of a bargaining unit employee, the public employer must provide to the exclusive representative, in an electronic file or other mutually agreed upon format, the foregoing list of information for the new hire.

Employers Prohibited from Disclosing Certain Employee Information

The law creates a new section in the IPLRA prohibiting employers from disclosing the following information:

  • the employee’s home address (including ZIP code and county);
  • the employee’s date of birth;
  • the employee’s home and personal phone number;
  • the employee’s personal email address;
  • any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation (including whether employees are members of such organization, the identity of such organization, whether or not employees pay or authorize the payment of any dues or moneys to such organization, and the amounts of such dues or moneys); and
  • emails or other communications between a labor organization and its members.

The new restriction mandates that employers provide or report such requests to the union or employee, depending on the circumstances. Violations of these requirements may be pursued as an unfair labor practice before the ILRB or in an action before a circuit court.

The purpose of these new restrictions is unclear, and they unnecessarily complicate information processing by public employers because the prohibition does not apply to most situations, stating explicitly that it “does not apply to disclosures (i) required under the Freedom of Information Act, (ii) for purposes of conducting public operations or business, or (iii) to the exclusive representative [i.e., the union].”

As a consequence of these new prohibitions, public bodies should exercise caution and seek legal advice before responding to requests for the restricted information from anyone other than the union.

Union Access

While not typically a problem and generally provided for in most collective bargaining agreements, the new law also codifies a union representative’s right of access to employees in the bargaining units they represent by adding a new section 5 ILCS 315/6(c-10).

Dues Deductions

The new law also codifies an employer’s obligation to deduct dues and other labor organization payments from employees pursuant to the employees agreement. The law clarifies that such dues deduction authorizations may be made irrevocable for long periods of time.

Employers must begin deductions as soon as practicable, but no later than 30 days after receiving written notice of an employee’s authorization for the same. Employers must transmit the deductions to the union no later than 30 days after they are made. Deductions must continue until the employee notifies the employer they have revoked their authorization in writing in accordance with the terms of the authorization, or the employee is no longer employed by the employer in a bargaining unit position.

Violations of these requirements are a breach of the employer’s duty to bargain and an unfair labor practice.

The Act also established a new section 5 ICLS 315/6.5 providing a defense to employers and unions following Janus as to any claims by employees seeking reimbursement for fair share fees that employees may have previously paid.

New Unfair Labor Practices

In addition to the foregoing obligations, the Act creates additional unfair labor practices by amending Section 10 of the ILRA with the following:

(8) to interfere with, restrain, coerce, deter, or discourage public employees or applicants to be public employees from: (i) becoming or remaining members of a labor organization; (ii) authorizing representation by a labor organization; or (iii) authorizing dues or fee deductions to a labor organization, nor shall the employer intentionally permit outside third parties to use its email or other communication systems to engage in that conduct. An employer’s good faith implementation of a policy to block the use of its email or other communication systems for such purposes shall be a defense to an unfair labor practice; or

(9) to disclose to any person or entity information set forth in subsection (c-5) of Section 6 of this Act that the employer knows or should know will be used to interfere with, restrain, coerce, deter, or discourage any public employee from: (i) becoming or remaining members of a labor organization, (ii) authorizing representation by a labor organization, or (iii) authorizing dues or fee deductions to a labor organization.

Further, the law explicitly requires employers to “refer all inquiries about union membership to the exclusive bargaining representative.” Therefore, the public bodies should be cautious in handling such requests.

All public bodies that are party to collective bargaining agreements should immediately review its obligations under this new law and take steps to come into compliance.

Illinois Workplace Transparency Act Imposes New Requirements on Employers

By: Joshua D. Herman

The new Workplace Transparency Act imposes significant obligations on Illinois employers beginning January 1, 2020. The Act significantly changes the legal obligations of most employers throughout Illinois, including governments and elected and appointed officials.

The Act was passed to ensure workplaces are free from unlawful discrimination and harassment by, among other things, safeguarding employees’ rights to report wrongdoing and imposing reporting and training obligations on employers.

The Act is not applicable to collective bargaining agreements and contracts that are subject to the Illinois Public Labor Relations Act or the National Labor Relations Act.

Employers Cannot Restrict or Prevent Reporting

The Act limits employer restrictions on employee reporting of allegations of unlawful conduct to federal, state, or local officials. Employers cannot subject employees to unilateral conditions of employment or enter into agreements that prevent the employee from making truthful statements or disclosures about alleged unlawful employer practices.

Settlement and termination agreements may include promises of confidentiality, so long as the employee remains able to make truthful statements or disclosures regarding illegal misconduct.

The employer cannot prohibit or prevent an employee from reporting unlawful or criminal acts by the employer, or cooperating with any investigation or prosecution by a governmental agency.

Employers Must Protect Non-employees

Effective immediately, the Act also requires employers to prohibit and take reasonable measures to prevent the harassment of nonemployees in the workplace. A “nonemployee” means a person who is not otherwise an employee of the employer and is directly performing services for the employer pursuant to a contract with that employer. “Nonemployee” includes contractors and consultants.

The Act Imposes New Reporting Obligations on Employers

Beginning July 1, 2020, and on or before July 1 of each year thereafter, employers must make required disclosures to the Department of Human Rights if they have been subject to an adverse judgment or administrative ruling in which there was a finding of sexual harassment or unlawful discrimination against the employer in the preceding year. If the Department investigates an employer for a charge under the Act, employers must also, upon the Department’s request, make disclosures of settlements for up to the last five years regarding allegations of sexual harassment or unlawful discrimination in the workplace.

Employers are prohibited from disclosing the name of the victim of an act of alleged harassment or unlawful discrimination in any of the disclosures required by the Act.

Employers who fail to make the required disclosures may be subject to civil penalties.

Sexual Harassment Prevention Training

The Act imposes new requirements on employers to provide annual sexual harassment training to employees. The Act requires the Illinois Department of Human Rights to create a model sexual harassment program, but in the meantime, employers should provide training that, at a minimum, includes:

  • An explanation of sexual harassment consistent with the Act;
  • 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 the employer in the prevention, investigation, and corrective measures of sexual harassment.

After the Department establishes the model training program, employers must use it to supplement any existing program. Failure to follow these training requirements could result in a civil penalty against an employer.

New Civil Penalties

In most cases, the Act provides that employers will be given notice of violations and 30 days to cure them. Employers who fail to cure such violations will be subject to civil penalties. The Act provides that the penalties for failures to report or train will be imposed based on the size of the employer, the good faith efforts made by the employer to comply, and the gravity of the violation. Typically, for employers having fewer than four employees, the penalties shall be $500 for a first offense, $1,000 for a second offense, and $3,000 for a third or subsequent offense. For employers having four or more employees, the penalties will typically be $1,000 for a first offense, $3,000 for a second offense, and $5,000 for a third or subsequent offense.

Employers should immediately review their policies and procedures to ensure that they are in compliance with the new law before it goes into effect on January 1, 2019.

Image of cannabis leaves

Employers must tackle new Cannabis Regulation and Tax Act

Recent Amendments Clarify Employer Right to Discipline for Off-Duty Use and Possession of Cannabis

By: Joshua D. Herman

Beginning January 1, 2020, it will be lawful for adults in Illinois over the age of 21 to consume and possess cannabis in accordance with the Illinois Cannabis Regulation and Tax Act (“CRTA”). The CRTA limits the amount of cannabis that may be possessed and prohibits its consumption in any “public place.” Meanwhile, the Right to Privacy in the Workplace Act (“RPWA”) prohibits employers from taking adverse employment action against employees for their use of lawful products off-premises, during non-working hours and while not on call.  This has raised questions regarding whether employers may discipline employees for use of cannabis during non-working hours.  A recent amendment to the CRTA has attempted to address this issue.

Under the CRTA as originally enacted, employers could still enforce reasonable zero-tolerance policies, including requiring random drug testing, as well as drug testing when the employer has a good faith belief an employee used, possessed or was under the influence of cannabis at work. However, it did not clearly state whether employers may discipline employees based solely on a positive drug test, without some indication the employee used, possessed or was under the influence of cannabis in the workplace, or otherwise jeopardized workplace safety.

On December 4, 2019, Governor Pritzker signed into law Public Act 101-593 (SB 1557) amending the CRTA to specify that employers may

  • implement reasonable workplace drug policies, including subjecting employees to reasonable drug testing or reasonable and nondiscriminatory random drug testing; and
  • discipline or terminate an employee or withdraw an offer of employment due to a failed drug test.

The requirement that drug policies be “reasonable” and “nondiscriminatory” suggests that testing should be random or required only under certain circumstances (such as pre-employment or following a workplace accident.)  Employers should not take this as license to test any employee suspected of consuming cannabis during non-working hours.  However, as amended, the CRTA now authorizes public employers to prohibit police, fire, and corrections officers, and paramedics from using or possessing cannabis off-duty.

Prior to January 1st, all employers should review and update their policies and employee handbooks to ensure they clearly identify prohibited cannabis-related conduct.

Employers cannot look into salary history

Equal Pay Act prohibits salary history inquiries

Employers Can No Longer Ask About or Look into Salary History

By: Joshua D. Herman

Effective September 29, 2019, Public Act 101-0177 (the “Act”)  made significant changes to the Illinois Equal Pay Act affecting the equality of pay and the types of inquiries employers may make of employees.

Generally, the Act makes it unlawful for an employer to seek wage or salary history, including benefits or other compensation, from a job applicant or a job applicant’s current or former employer. Employers may not screen job applicants based on their current or prior wages or salary histories (including benefits or other compensation) by requiring that the wage or salary history of an applicant satisfy minimum or maximum criteria.

The Act does not prevent an employer from providing information about the wages, benefits, compensation or salary it offers, or from engaging in discussions with an applicant regarding their expectations with respect to wages, salaries, benefits or other compensation.

Violations of the Act could subject the employer to civil action and damages. Such damages could include:

  • Injunctive relief (requiring the employer to take or refrain from taking certain actions);
  • Special damages up to $10,000;
  • Compensatory damages to the extent they exceed special damages; and
  • Costs and reasonable attorney’s fees.

The Act allows a claim for violation of these provisions to be brought within five years.

Employers should review their hiring processes and procedures to ensure they do not run-afoul of the amended Illinois Equal Pay Act.

Changes to Ashley’s Law: What Does It Mean for Medical Marijuana in Schools?

Governor signs bill expanding the administration of medical marijuana to students.

By:  Kateah M. McMasters

On August 12, 2019, Governor Pritzker signed Senate Bill 455 expanding “Ashley’s Law”, which currently allows a parent, guardian or designated caregiver to administer medical marijuana to a student with a valid prescription on school grounds and on school buses.

The law’s expansion (Public Act 101-0370) amends Section 22-33 of the Illinois School Code to require school districts, public schools, charter schools, and non-public schools to allow a school administrator or nurse to administer a “medical cannabis infused product” (i.e. edible and topical products) to a student that is a registered qualifying patient under the Compassionate Use of Medical Cannabis Program Act while on school grounds, at school-sponsored activities, at before or after school care on school grounds, or on a school bus.  However, the law does not explicitly require school administrators or nurses to actually administer medical marijuana to students; instead, the amendment only requires schools to allow these personnel to administer medical marijuana to a student if they are willing to do so.

The amendment also permits schools to authorize students to self-administer their own medical marijuana under the direct supervision of an administrator or nurse.  As with the change discussed above, the law does not explicitly require schools to allow its students to self-administer their medical marijuana; however, they are permitted to do so.

Additional requirements and training

In order for a school administrator or nurse to administer medical marijuana to a student, or for a student to self-administer medical marijuana, the parent or guardian must provide the following to the school:

(1) written authorization for its use, including the time where or the special circumstances under which the medical marijuana must be administered, and

(2) a copy of the registry identification card of the student (as a registered qualifying patient) and the parent or guardian (as a designated caregiver).

If a school permits self-administration by a student, the authorization must be renewed each school year.

Medical marijuana to be administered by a school nurse or administrator, or self-administered by the student, may now be stored on school property, but it must be stored in the same manner as all other student medication at the school, and can only be accessed by the school nurse or an administrator.

Personnel who elect to administer medical marijuana to students must complete training on the administration of medical cannabis infused products before they may administer cannabis to students.  The training will be developed by the Illinois State Board of Education and Illinois Department of Public Health., and must be completed annually.

Finally, the new law amends Section 25 of the Compassionate Use of Medical Cannabis Program Act to extend its immunities to school administrators and nurses who elect to administer medical cannabis to students or to assist students in self-administration under the School Code.  Such nurses and administrators are immune from arrest, prosecution, and denial of any right or privilege, including a civil penalty.  However, unlike the immunities for designated caregivers, school nurses and administrators are not immune from disciplinary action by an occupational or professional licensing board.

Next steps

The new law takes effect on January 1, 2020. Prior to the effective date schools should review their policies addressing the administration of medical marijuana as necessary. Schools without such policies should come into legal compliance by establishing them, because such policies were required when Ashley’s Law first became effective on August 1, 2018.  

Schools are encouraged to contact legal counsel to discuss the impact of the changes to Ashley’s Law and to formulate a new policy regarding the use of medical marijuana by qualifying students on school buses and school grounds that is consistent with the amendments to the School Code.

Illinois Human Rights Act will apply to almost all employers in July of 2020

By: Joshua D. Herman

On August 21, 2019, Governor Pritzker signed Public Act 101-0430 into law, amending the Illinois Human Rights Act (“IHRA”).  Previously, the IHRA applied only to employers having 15 or more employees, except in cases of pregnancy discrimination, sexual harassment, and disability discrimination.

Effective July 1, 2020, the IHRA’s provisions apply to employers having at least one employee within Illinois during 20 or more calendar weeks in a calendar year of or preceding an alleged claim.  This expansion of IHRA’s applicability will subject most employers to potential liability under state law for claims of age discrimination, race, national origin, gender, sexual orientation, religion, and other claims previously only available to employees of employers having 15 or more employees.