Law Offices of Stanley E. Niew, P.C.

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LABOR & CONSTRUCTION LAW UPDATES

2022 Newsletters

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These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented.  Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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​JANUARY 2022


Inside This Issue

1.    OSHA’s Covid-19 Mandate is Back. . .For Now

2.    Can Employers Require Employees to Quarantine After Completion of Their Travel Plans?


3.    Thinking of Making a Claim to Commercial Property Policies for Business Interruption. . .?


4.    Employers to Disclose Different Insurance Coverage


5.    Victims Economic Security and Safety Act (“VESSA”) Amended


6.    Amendment to the Prevailing Wage Act


7.    Employment Applicant Can Now Discuss Certain Prior Benefits


8.    New Artificial Intelligence Interview Act


9.    Personnel Record Review Act Amended


10.  NLRB Continues to Overturn Prior Precedent



​OSHA’s Covid-19 Mandate is Back. . .For Now

On November 5, 2021, OSHA published an emergency temporary standard (“ETS”) regarding mandating workplace vaccination and testing of all private employers with 100 or more employees.  Soon thereafter the 5th Circuit Court of Appeals issued a temporary restraining order which stayed enforcement of the ETS. 


The matter was then assigned to the 6th Circuit Court of Appeals which dissolved the temporary restraining order.  OSHA can again implement the ETS, but OSHA is allowing more time for employers to comply and will not issue citations before January 10, 2022. Complete employer compliance is not required before February 9, 2022 so long as an employer makes a good faith effort to comply.


Employers should publish their Covid-19 vaccine policy for anyone who tests positive for Covid-19.  Additionally, employees diagnosed with Covid-19 will immediately provide notice of the positive test to the employer and not enter the workplace until they meet CDC criteria.  Employers must also finalize their vaccination roster obtaining proof of full vaccination in a confidential manner. 


By February 9, 2022 employers must require all employees to be fully vaccinated excluding the booster shot.  Or to require all unvaccinated employees to submit to testing weekly.  Of course the ETS would not apply to employees working exclusively remotely.


Today, January 7, 2022, the U. S. Supreme Court heard emergency arguments as to the validity and constitutionality of this OSHA rule, as well as other federal and administrative mandates for vaccination and Covid testing.  Everyone is expecting a decision quickly.



Can Employers Require Employees to Quarantine After Completion of Their Travel Plans?


The two basic questions are: should employers maintain a policy to require employees to quarantine before returning to work after out of state travel; and how in depth can employers inquire of employees travel plans in light of Covid-19? 

The answers depend on where the employees work.  For example, the City of Chicago has a requirement that anyone who is unvaccinated and travels to a high risk “orange” state must get tested with a viral test 3-5 days after return and self-quarantine for a full 7 days.  For businesses located outside of Chicago, Illinois Administrative Departments recommend self-monitoring for Covid-19 symptoms and if symptoms develop, isolate and test.

For unvaccinated travelers the Illinois Administrative Departments recommend to stay home and self-quarantine for a full 7 days after travel even if the employees test negative 3-5 days after return.


It has yet to be determined how the CDC lowered 5-day restriction on return to work for health care workers will affect the current policies.


Thinking of Making a Claim to Commercial Property Policies for Business Interruption. . .?

During the Covid-19 pandemic many businesses were forced to slow down, temporarily shut down or take other steps which sent profits soaring downward.  Recently the United States 7th Circuit Court of Appeals ruled in four separate opinions that commercial property policies do not cover loss of income or increased expenses due to the pandemic.  The suit involved four different property insurers and four different property owners who were told by the 7th Circuit that “a physical altercation” was required to trigger business coverage.



Employers to Disclose Different Insurance Coverage

Effective August 21, 2021, the Consumer Coverage Disclosure Act was enacted which requires employers who provide group health coverage insurance to furnish a list that compares the employers group coverage benefits to the state mandated health insurance coverage benefits, but only upon employee request. 

 The Department of Insurance is to provide information outlining individual health insurance coverage so the employer will have information to create the list.  This Act also provides for civil penalties if the Department of Insurance issues a notice to the employer of non-compliance.  The employer has 30 days to respond to any Department request.



Victims Economic Security and Safety Act (“VESSA”) Amended

​Effective January 1, 2022 VESSA permits employees to take leave if they or a covered family member were victims of domestic violence, sexual violence, gender violence or even any other crime of violence.  Family or household members includes a spouse, party to a civil union, parent, grandparent, child, grandchild, sibling or any other person related by blood, by present or prior marriage, civil unions, or other person who shares a relationship through a child or other individual whose close association with the employee is equivalent of a family relationship as determined by the employee or others living in the same household. 


Under VESSA, employers can require employees to certify their right to VESSA leave by signing a sworn statement with documentation.  Under the amendments to VESSA, documentation is required only if the employee has it. Employees get to choose which documents to submit.  The employer can then only require one more document. 


Amended VESSA requires employers to keep all employee information provided in the “strictest confidence.”


Finally, VESSA has been expanded to apply to job applicants and employees who are perceived to be victims of criminal violence, domestic violence, sexual violence or gender violence.


If you need assistance in updating your policy or training concerning VESSA please contact Stanley Niew at sniew@senlaw.net.



Amendment to the Prevailing Wage Act

Effective January 1, 2022, the Prevailing Wage Act (“PWA”) was amended providing that the Illinois Department of Labor (“IDOL”) is responsible for maintaining a database that allows the public to view certified payrolls submitted by construction contractors on public works subject to the PWA.  The amendment is apparently intended to ensure construction contractors are complying with the PWA when they submit certified payrolls by the 15th day of the month.  The amendment provides that by the 16th day of the month the IDOL will make relevant information available to the public.



Employment Applicant Can Now Discuss Certain Prior Benefits

Effective January 1, 2022, the Equal Pay Act was amended to clarify that the law does not prohibit employers and applicants from discussing an employment applicant’s unvested equity or deferred compensation that would be lost upon resignation from the current employer.  The discussion must be voluntary, without prompting, and the employer can require an employee to verify the total amount they would lose by submitting a letter or other document, the name of their current employer or the entity that controls the funds.



New Artificial Intelligence Interview Act

The Act provides that employers who rely on artificial intelligence (“AI”) analysis of an applicant’s video interview to decide whether the applicant should be interviewed in person must collect data showing the race and ethnicity of the applicants who are and are not interviewed in person and used AI analysis as well as the race and ethnicity of who is hired.  


Each employer must report the data to the Illinois Department of Commerce and Economic Opportunity by December 31 yearly, which must cover 12 prior months ending November 30.  This law is effective January 1, 2022.



Personnel Record Review Act Amended

The Amendments provide for private suits against employers who disclose confidential disciplinary action.  Prior to this amendment there was no remedy for aggrieved employees whose employer or former employer divulged confidential disciplinary information from the employees’ personnel records in violation of the Act.  The law as amended is effective January 1, 2022.


Confidential disciplinary action includes Social Security number, driver’s license number, biometric identifiers, personal financial information, passwords, access codes, medical records, personal telephone and email addresses.  For a complete list check 820 ILCS 40/7.



NLRB Continues to Overturn Prior Precedent


In American Steel Construction, decided December 7, 2021, the NLRB in an election petition case gave a notice and invitation to file briefs to create new law.  Some preliminary information is necessary. 


In PCC Structurals, Inc., 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019), the Regional Director found that although field employees share an internal community of interest, it was not “sufficiently distinct” from the interests of the fabrication shop employees, painters, and drivers whom the Union proposed to exclude from the unit.  Accordingly, she dismissed the petition.


PCC Structurals overruled the Board’s prior standard for determining if a proposed bargaining unit is an appropriate unit, as set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F. 3d 552 (6th Cir. 2015).  In Specialty Healthcare the Board held that:

  • [W]hen employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.


The NLRB found there are substantial issues warranting review that the Regional Director’s conclusion that the petitioned-for election unit is inappropriate.  The NLRB then invited briefs to address the following issues: 

  1. Should the Board adhere to the standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), as revised in The Boeing Company, 368 NLRB No. 67 (2019)?
  2. If not, what standard should replace it?  Should the Board return to the standard in Specialty Healthcare, 357 NLRB 934 (2011), either in its entirety or with modifications?


Briefs can be filed, not to exceed 20 pages with the NLRB in Washington, D.C., before January 21, 2022. 

It should be noted that two dissenting members of the NLRB refused to depart from precedent which has existed for a decade.


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