Update: An Illinois State Representative filed a lawsuit alleging that the extension of Illinois’ Stay-at-Home Order exceeds Governor Pritzker’s authority and violates Illinoisians’ civil rights. On April 27, 2020, a Clay County Circuit Court Judge granted a restraining order temporarily blocking the modified Order as it applies to the State Representative. During Governor Pritzker’s briefing on April 28, 2020, he stated his intent to appeal the ruling and noted that the restraining order applies only to the State Representative, and not to Illinoisans more broadly. The modified Order is still scheduled to become effective May 1, 2020.

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Illinois has been under a “Stay-at-Home” Executive Order since March 20, 2020. Among its mandates, the original Stay-At-Home Order closed “Non-Essential Businesses,” with the exception of Minimum Basic Operations.  On April 23, 2020, Illinois Governor J.B. Pritzker announced that Illinois’ Stay-at-Home Order will be extended through the end of May 2020, with certain changes effective May 1, 2020. 

Specifically, effective May 1, 2020, certain Non-Essential Businesses will be permitted to operate pick-up and delivery services, additional businesses have been added to the list of those classified as “Essential,” and new face covering and social distancing requirements come into effect for all open businesses. The modified Order was released early to permit Illinoisans to prepare for these changes. The new Order will be filed on April 30, 2020, and employers must be prepared to comply with the new requirements starting May 1, 2020. Some key changes are as follows:

Employers Must Provide Employees With Face Coverings

Employers will be required to provide employees with face coverings to wear during work. The modified Order does not require a particular type of face covering provided it covers the employee’s nose and mouth. All employees who can medically tolerate wearing a mask or other cloth face covering must wear such coverings when unable to maintain a six-foot social distance, and employers must ensure compliance. In certain work circumstances, which are not specified in the modified Order, employers may be required to provide employees with Personal Protective Equipment in addition to face coverings.

All Businesses Are Encouraged to Allow Remote Work When Possible

All businesses must evaluate which employees are able to work from home. The modified Order encourages, but does not explicitly require, employers to facilitate remote work from home when possible.

Non-Essential Retail Stores May Reopen in a Limited Capacity

Retail stores not designated as Essential Businesses and Operations may reopen May 1, 2020 for the limited purposes of fulfilling telephone and online orders through pick-up and delivery. Such operations will be deemed Minimum Basic Operations in the modified Order. Employees working in the store and carrying out such Minimum Basic Operations must follow social distancing requirements, and must wear a face covering when there is a possibility they could come within six feet of another employee or a customer.

New Requirements for Essential Retail Stores

To the greatest extent possible, retail stores designated as Essential Businesses and Operations must:

• Provide face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times;
• Cap occupancy at 50 percent of store capacity, or, alternatively, at the occupancy limits based on store square footage set by the Illinois Department of Commerce and Economic Opportunity;
• Set up store aisles to be one-way where practicable, and identify the one-way aisles with signage and/or floor markings;
• Communicate with customers about the social distancing requirements through in-store signage, public service announcements, and advertisements; and
• Discontinue use of reusable bags.

Greenhouses, garden centers and nurseries, and animal grooming services have now been identified as Essential Businesses permitted to be open.

Of note, the original Order previously provided that Essential Businesses were encouraged to remain open.  The modified Order now states that Essential Businesses may remain open.  

New Requirements for Manufacturers

Manufacturers operating in compliance with the original Stay-At-Home Order must implement appropriate additional precautions, which may include:

• Providing face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times;
• Staggering shifts;
• Reducing line speeds;
• Operating only essential lines, while shutting down non-essential lines;
• Ensuring that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing; and
• Downsizing operations to the extent necessary to allow for social distancing and to provide a safe workplace in response to the COVID-19 emergency.

Posting Requirement

All businesses that have employees physically reporting to a worksite must post guidance from the Illinois Department of Public Health and Office of the Illinois Attorney General regarding workplace safety during the COVID-19 emergency.

Enforcement Plans Remain Unclear

The modified Order does not clarify what the ramifications are for employers that fail to comply. It does, however, require businesses to determine whether they qualify as Essential by following guidance published by the Office of the Governor, the Illinois Department of Commerce and Economic Opportunity, and state and local law enforcement. Businesses must also follow guidance regarding social distancing requirements published by the Illinois Department of Public Health, local public health departments, and the Workplace Rights Bureau of the Office of the Illinois Attorney General.

In accordance with the Illinois Whistleblower Act, the modified Order prohibits businesses from retaliating against an employee for disclosing information where the employee has reasonable cause to believe that the information discloses a violation of the Order.