Local Government Law Bulletin

Video Gaming May Return as Early as June 26

The Illinois Gaming Board has issued protocols for the return of video gaming terminals. The protocols, issued June 9, 2020, indicate that the earliest video gaming operations may return is during Phase 4-Revitalization of the Restore Illinois Plan, which could be as early as June 26, 2020 (so long as a given EMS Region meets all the requirements to move to the next phase).

As with the reopening of many businesses during the Coronavirus pandemic, video gaming will operate a little differently. First, all gaming areas and video gaming terminals will have to be deep cleaned, sanitized, and disinfected prior to reopening and ongoing cleaning protocols must be implemented. Terminals will now be separated by transparent partitions such as plexiglass or safety glass, or terminals will need to be placed 6 feet apart, to allow for social distancing. In addition, face masks must be worn at all times while using video gaming terminals and inside the gaming area.

Prior to reopening, video gaming terminal operators must submit a Pandemic Resumption Plan via email to the Illinois Gaming Board. Each plan must cover 9 areas: 1) Reopening Procedures and Waiver Requests, 2) Social Distancing Requirements, 3) Personal Protective Equipment (PPE), 4) Cleaning, Disinfecting and Sanitizing, 5) Signage, 6) Capacity and Occupancy, 7) Daily Health Screening, 8) Training, and 9) Monitoring and Reporting. The Pandemic Resumption Plan must be consistent with and video gaming operators will be required to comply with the Illinois Department of Public Health and Department of Commerce & Economic Opportunity guidance as well as the Center for Disease Control requirements relating to COVID-19.

Municipalities with video gaming terminals are encouraged to get the word out to local businesses regarding the requirements that must be met prior to reopening. Local businesses can prepare for reopening video gaming terminals in Phase 4, but the Illinois Gaming Board will announce the official date at a later time.

Click here for the Illinois Video Gaming Resumption Protocols (2020.06.09).

Brandy S. Quance

Temporary Holdup for Workers’ Compensation Commission’s Emergency Regulations

While it feels like time at home is passing slowly for many, responses to COVID-19 are changing rapidly. The Workers’ Compensation Commission’s emergency regulations, issued recently to protect first responders and front-line workers exposed to COVID-19, have been challenged as exceeding the Commission’s authority. A Sangamon County judge issued a temporary restraining order to stop the emergency regulations from being implemented and a hearing on the matter has been scheduled.

The emergency regulations were issued on April 15, 2020 by the Workers’ Compensation Commission, not by the Illinois legislature, and stated that any injury or incapacity due to COVID-19 exposure to first responders and front-line workers that happens during the state of emergency “will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.” See 50 Ill. Adm. Code 9030.70(a)(1) (April 15, 2020). This is a change from the general rule that petitioners bear the burden of proving that contagion to an infectious disease arose out of their employment and directly in the line of their duties while working. The Illinois Retail Merchants Association and the Illinois Manufacturers Association’s lawsuit argues that the Commission exceeded its rulemaking authority and did not follow the statutory requirements relating to changes to rules.

Municipalities face uncertainties during this time with questions as to whom the emergency regulations will apply. While the regulations apply to first responders, what other municipal workers may fall under this presumption? The emergency regulations define “COVID-19 First Responder or Front-Line Worker” to include personnel identified under the Essential Governmental Functions portion of Executive Order 2020-10, which states in relevant part:

For purposes of this Executive Order, all first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support Essential Businesses and Operations are categorically exempt from this Executive Order.

Essential Government Functions means all services provided by the State or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing Essential Government Functions. Each government body shall determine its Essential Governmental Functions and identify employees and/or contractors necessary to the performance of those functions.

Illinois Executive Order 2020-10. Without case law to test the emergency regulations, municipalities are left to wonder if the regulations apply only to those employees municipalities identified as performing essential functions, or if the regulations might also include employees who have continued to perform non-essential duties, perhaps even from home. Some insurers and risk management agencies are also questioning whether at-home workers should even be subject to the presumption. Further, we do not yet know if municipal designations of essential and non-essential workers is disputable. While Executive Order

While the Sangamon County court case has halted the emergency regulations for now, how these cases will be handled may take years to answer. In the meantime, and in the face of these uncertainties, municipalities should follow the Center for Disease Control and health departments’ recommendations for businesses and abide by the Governor’s Executive Orders on social distancing and wearing face coverings to help limit potential liability.

Author: Brandy S. Quance

Workers’ Compensation Emergency Regulations Protect First Responders and Front-Line Workers Exposed to COVID-19

The State of Illinois has issued emergency regulations governing the rules of evidences for Workers’ Compensation claims related to COVID-19 First Responders and Front-Line Workers. For those parties identified in the emergency regulations, any injury or incapacity that happens because of COVID-19 exposure during the state of emergency will be rebuttably presumed to arise out of their employment and to be causally connected to the hazards and exposures of their employment. Otherwise, Workers’ Compensation petitioners generally bear the burden of proving that contagion to an infectious disease arose out of their employment and directly in the line of their duties while working.

For government employers, it is worth noting that this regulation will apply to police, fire personnel, emergency medical technicians, and paramedics, as well as all individuals employed and considered as “first responders,” health care providers engaged in patient care, and correction officers.

Firefighters, EMTs, and paramedics already had a statutory presumption of work-related contagion of respiratory conditions, among other diseases/conditions, such as blood borne pathogens, heart disease, and cancer, in claims through the Workers’ Compensation Act and the Workers Occupational Diseases Act.

The Workers’ Compensation emergency rule also will apply to the crucial personnel of the following essential businesses that were identified under the following headings in the Governor’s Stay-at-Home Executive Order No. 10, Section 1, Part 12 (which list includes all of the businesses identified in that order apart from “Media. Newspapers, television, radio, and other media services”):

• Stores that sell groceries and medicine
• Food, beverage, and cannabis production and agriculture
• Organizations that provide charitable and social services
• Gas stations and businesses needed for transportation
• Financial institutions
• Hardware and supplies stores
• Critical trades
• Mail, post, shipping, logistics, delivery, and pick-up services
• Educational institutions
• Laundry services
• Restaurants for consumption off-premises
• Supplies to work from home
• Supplies for Essential Businesses and Operations
• Transportation
• Home-based care and services
• Residential facilities and shelters
• Professional services
• Day care centers for employees exempted by Executive Order 2020-10
• Manufacture, distribution, and supply chain for critical products and industries
• Critical labor union functions
• Hotels and motels

A crucial definition under Workers’ Compensation law will be how expansive the definition of “first responder” is applied. The Workers’ Compensation Act does not define the phrase. The recent Families First Coronavirus Response Act utilizes the phrase “emergency responder” which the Department of Labor defined to include public works employees, in addition to police and fire personnel.

Author: Ruth A. Schlossberg

New DOL Regulations Address Loose Ends Regarding Federal COVID-19 Benefits

Today, the U.S. Department of Labor (DOL) issued temporary rules pertaining to the Families First Coronavirus Response Act, which addresses, among other items, benefit time through the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLEA).

A major clarification in the rules addressed the first of the six qualifying reasons for EPSL, which is when an employee “[i]s subject to a federal, state or local quarantine or isolation order related to COVID-19.” The DOL clarified that a statewide shelter in place/stay at home order, such as the Illinois Governor’s Order now extended through April 30 (Order), is an intended quarantine or isolation order. So generally, an employee who is not able to report to work because of the Order can receive EPSL.

The DOL further clarified that eligibility is based on “whether the employee would be able to work or telework ‘but for’ being required to comply with [the Order].” The DOL applies the “but for” test narrowly, holding that the specific reason an employee is not able to work must be that: (a) there is work for the employee to do; (b) the employee cannot legally report to work due to being required to stay at home; and (c) the employee cannot perform the work from home.

The DOL’s interpretation specifically excludes an employee who has no work to perform at their regular job from receiving EPSL, even if the reason for lack of work is COVID-19 related. For example, if a recreation center is closed due to the Order, then an employee who sells concessions at the center is not eligible for EPSL because there are no concessions to sell, regardless of the fact the employee may be subject to the stay at home Order, and regardless of the fact that the recreation center is closed due a COVID-19 reason.

By contrast, an administrative assistant who is deemed to be a nonessential employee by a municipality, would seemingly be eligible for EPSL, if the employee is not able to work from home. This is because there is work for the assistant to do, even if it is not “essential” under the Order, but the assistant is not legally able to report to work because of the stay at home Order. If, however, the assistant is able to work remotely, then the EPSL would not be available because the assistant is not restricted from working.

Another clarification is for the third qualifying reason for EPSL, if the employee “[i]s experiencing COVID-19 symptoms and is seeking a medical diagnosis.” The rules state that: “an employee experiencing COVID-19 symptoms may take paid sick leave [] for time spent making, waiting for, or attending an appointment for a test for COVID-19. But the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.” The DOL further states that an employee may remain on EPSL while waiting for test results, and that an employee who is not eligible for testing would be eligible under the second qualifying reason if the employee “is advised to self-quarantine” by a health care provider.

The DOL also narrowed a problematic qualification for EPSL if an employee is “caring for an individual subject to a quarantine or isolation order.” Questions arose as to whether an employer would have to pay an employee EPSL to take care of a complete stranger. The rules now require that the previously undefined “individual” must be “an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.”

The DOL’s rules are 124 pages and address several other subjects, such as documentation to substantiate qualified leave, which we will address in a forthcoming issue. As a reminder for local government purposes, the IRS requirements to receive tax credits for paid benefits under EPSL and EFMLEA are not relevant, because public bodies are currently excluded from receiving tax credits.

Lastly, please keep in mind that the legislation and rules related to COVID-19 are rapidly evolving. Even the DOL’s newly issued rules may change significantly, so be aware that any reference materials may become outdated in a matter of weeks or even days.

Responding to Small Business Concerns

We will soon know more about the details of the federal emergency aid package, but in the meantime, here are some other reminders of help for small business:

Tax Due Date Extended to July 15, 2020: The IRS has announced that the federal income tax filing due date for 2019 taxes has been extended from April 15, 2020 to July 15, 2020 for most taxpayers with tax liability under $1 million. Tax payments due on April 15, 2020 from all taxpayers – including corporations and individuals — will also be extended to July 15, 2020 without penalties or interest. This extension is automatic and will not require any filing to obtain unless a taxpayer is seeking an extension beyond the new July 15 deadline. According to the IRS, this extended deadline will also apply to estimated 2020 tax year payments that would ordinarily be due on April 15, 2020. Taxpayers are still urged to file before July 15, and the IRS will continue to issue refunds for eligible taxpayers. They estimate an approximate 21 day wait period to receive a refund.  For more information see: https://www.irs.gov/newsroom/tax-day-now-july-15-treasury-irs-extend-filing-deadline-and-federal-tax-payments-regardless-of-amount-owed

Payroll Tax Credits for Small and Midsize Employers:  As previously reported, under the new Federal Families First Coronavirus Response Act (Act), the Federal government has authorized two new refundable payroll tax credits.  According to the IRS, these are meant “to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees.” This tax credit applies to employers with fewer than 500 employees to encourage them to keep employees on the payroll with paid leave for their own health needs or to care for a family member.  The credit will include health insurance costs.  It also applies to self-employed individuals.  The bill exempts certain small businesses from the child-care leave requirement if it would jeopardize the business’ ability to continue.  The bill is intended to let businesses retain and use funds for these purposes that they would otherwise have paid to the IRS for payroll taxes (including withheld federal income taxes and  eligible amounts of the employer and employees share of  Social Security and Medicare taxes equivalent to the amounts paid in qualified expenses ).    Further guidance on this is expected to be released this week.  The IRS will post additional information about this on its website at:   Coronavirus Tax Relief on IRS.gov.

Other Resources to help small and local businesses respond to the economic challenges posed by this pandemic?  Check out:

The US Chamber of Commerce: https://www.uschamber.com/coronavirus?es_p=11251762

MainStreet.org: https://www.mainstreet.org/howwecanhelp/resourcecenter/covid19resources

Author: Ruth A. Schlossberg

Conducting Remote Meetings During the COVID-19 State of Emergency

Governor’s Pritzker’s March 16 Executive Order 2020-07 that allowed for remote attendance for public meetings raises new questions about how best to comply with the Open Meetings Act when holding remote meetings at which all members are attending remotely.

The Public Access Counselor’s Guidance http://foia.ilattorneygeneral.net/pdf/OMA_FOIA_Guide.pdf on this Executive Order has offered some direction on that issue. They have encouraged public bodies to provide some kind of digital access for the public to meetings such as video, audio or telephonic attendance, and to  continue to provide for public comment by some sort by remote access, as well as by email or other written submissions that could be read at public meetings. Many public bodies are now exploring and experimenting with group conference capabilities that allow the public to listen to the public meetings or observe them.

Here are some of the suggestions and practices to hold successful remote meetings in a manner compliant with the Open Meetings Act and the Governor’s Executive Order.

• Do not forget about public notice requirements. Those are unchanged.
  • You still need to let the public and any news media have requested it know about your meetings.
  • For regular meetings, the Open Meetings Act requirement to post the agenda 48 hours in advance at the principal office of the public body does not appear to have been waived (but in our opinion, ideally this should only be done if it can be done safely, although neither the law nor the guidance state as much).
  • Since remote meetings will be taking place in cyber-space, the requirement to post at the place where the meeting will be held for regular meetings would appear to require website and social media posting instead of physical posting regardless of whether you maintain a full-time staff to maintain the website.
  • For bona fide emergency meetings, the 48-hour notice requirements of the Open Meetings Act may be shortened. A strict reading of the Act suggests that the physical posting requirement also do not apply (although you are required to let all news media that has asked for notice to know about any emergency meeting). It will, however, be a best practice to post notice of such emergency meetings on your website or social media.
• Do not forget about public comment.
  • The requirement to provide for public comment at public meetings has not been waived. However, public bodies need to use creativity to find ways to accommodate this requirement for purely remote meetings.
  • How a public body accommodates public comment will, of course, depend on the method the body uses to hold its remote meetings. In some instances, the public may be easily able to listen on the phone or observe the meeting online, but it may be more difficult to find means for them to participate. In other case, some technology will allow members of the public to be heard during conference calls or web-enabled conferences, although the body will need to find ways to enable comments to be heard one at a time.
  • In the absence of technology that would allow individual public comments, the public can be invited to submit email or other digitally or phone relayed comments in advance of the meeting that can either be read out loud at the meeting or provided to all the body’s members.
  • In all events, it will be good practice to let the public know how they can submit comments for public meetings and to include that information along with any agenda postings and other notices of public meetings. Then, it is important that the public body members see or hear all such public comments.
• Consider in advance how to run a good remote meeting.  We will all learn from experience, but here are some thoughts to consider.
  • In advance of the meeting consider potential issues that could affect the quality of the meeting such as ensuring that parties mute their phones or computers when they are not speaking to limit background interference.
  • Ensure that all participants can hear and understand each other.
  • The Chair should consider in advance how they will recognize speakers and ensure that all body members have the opportunity to be heard.
  • Ensure that the Clerk or other party taking minutes is able to do so effectively.
  • Ensure that all votes can be clearly and accurately counted.
  • If you have members that have a conflict and need to recuse themselves from any discussion or vote, ensure you have a means for them to effectively ensure that they are not counted as present for such a vote. Consider having them dropping off a call temporarily or otherwise doing something that effectively “removes them from the room” during any discussion or vote in which they may have a conflict.
  • Be sure to communicate to the public and the body any special procedures that may need to apply to successfully run a remote meeting.
  • Consider providing public body members with a phone number of a responsible staff member or body member who they can call or text if for some reason they are dropped from the remote meeting or cannot otherwise participate for technology reasons.
  • Remember that while the public meeting is in session, communications between public body members will still be subject to the Freedom of Information Act. During the meeting, members should avoid texting and emailing each other outside of the public discussion taking place in the meeting just as they would at an ordinary meeting.
  • Check out the helpful “Remote Participation Checklist” and “Remote Participation Script” prepared for the Town of Arlington, MA. While not all of the provisions will apply to Illinois municipalities, these might provide a useful starting point for your own checklists and scripts that will be revised based on the technology that you are using and the requirements of the Illinois Open Meetings Act.

Author: Ruth A. Schlossberg

Federally Mandated Paid Leave for Employees Related to COVID-19

All public employers must provide paid sick leave and FMLA leave for employees not able to work due to many reasons related to COVID-19. HR 6201 became law yesterday which provides, among other items, that all public employees (and all private employees who work for a company with less than 500 employees), with qualifying COVID-19 related absences, are eligible for up to 80 hours of paid sick leave. Also, employees who have worked for at least 30 days must be afforded partially paid FMLA leave, beyond regularly available paid time off, to provide child care should school or regular child care programming be unavailable, due to COVID-19 closures.

Of particular significance, both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act require employees to be paid to care for their children who are unable to go to school or their regular child care provider, due to COVID-19 precautions.

Emergency Paid Sick Leave (EPSL):

Beginning April 2, 2020, all local governments must pay any full-time employee (even a new employee) 100% of the employee’s regular compensation for up to 80 hours of EPSL for the following reasons:

• The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
• The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

Payment for the above-stated reasons is capped at $511 per day, or $5,110 aggregate.

Employees must be paid two-thirds of the employee’s regular compensation for up to 80 hours of EPSL for the following reasons:

• The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order or self-quarantine due to concerns related to COVID-19.
• The employee is caring for a minor son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
• The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Payment for the above-stated three reasons is capped at $200 per day, or $2,000 aggregate.

Notably absent from the EPSL list is when an employee is directed by the employer to not report to work due to suspected exposure to COVID-19. This is particularly tricky because other laws, such as Workers Compensation laws, would generally make an employer responsible for lost wages due to an exposure which is proven to arise out of and in the course of his employment. Also, an employee being ordered to not report to work due to suspected exposure would likely be seeking a medical diagnosis which, if coupled with any COVID-19 symptom such as a cough or sore throat, would make the employee eligible for EPSL anyway. Additionally, requiring an employee, who is asymptomatic, to utilize regular paid benefit time may conflict with collective bargaining agreement requirements and also raises due process concerns. Safest and simplest practice would be to pay employees EPSL who are being ordered to self-quarantine.

A few additional notes:

• Part-time employees are eligible for the same EPSL commensurate to their regular hours of work, on average, in a two week period of time. For example, a part-time employee who works 20 hours per week would be eligible for up to 40 hours of EPSL.
  • Please note that this must be provided even if the part-time employee does not regularly receive paid sick or other benefit time.
• The EPSL is in addition to all other available benefit time, and an employer cannot require an employee to utilize other benefit time in lieu of or concurrently with EPSL.
• Police officers and firefighters may be exempted from EPSL. The Act states: “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” While not clearly stated, this provision appears to be focused on not requiring an employer to provide additional leave to emergency responders for child care reasons, to ensure that adequate public safety employees are available at all times. But as written, an employer could specifically exempt public safety employees from any EPSL benefit.

Emergency Family and Medical Leave Expansion Act (FMLA Expansion)

Also beginning April 2, 2020, all public employers must provide an enhanced version of FMLA leave to employees to provide child care based on certain COVID-19 related issues. The expanded eligibility changes are that:

1. Generally and until further rules may be published by the Department of Labor, all public employers, regardless of size (instead of 50 or more employees for regular FMLA), are subject to the FMLA Expansion;
2. To be eligible for the FMLA Expansion, an employee need only work for 30 days (instead of 12 months under regular FMLA) and must not be able to work remotely;
3. The additionally stated qualifying reason is that the “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency,” which means any declared COVID-19 related emergency by the federal, state, or local government.

Similar to regular FMLA, employees who have a qualified Expanded Leave are generally provided protection of not losing their positions for up to the 12 week leave period.

However, unlike regular FMLA, which does not create any guarantee of payment, employees must be paid for up to 10 weeks (all but the first 2 weeks) of the leave period at two-thirds of their regular compensation rate, capped at $200 per day or $10,000 aggregate. Hourly employees’ compensation is based on the average of their past 6 months of employment, including any leave time taken in that 6 months. For employees without a 6 month work history, the compensation shall be based on “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”

Connecting the EPSL and FMLA Expansion theoretically provides a continuous payment for up to 12 weeks at two-thirds of the employee’s compensation to care for a child due to COVID-19 related school or child care closing, because the EPSL provides the first 2 weeks, and the FMLA Expansion provides the last 10 weeks.

A few additional notes:

• The FMLA Expansion does not clearly address whether an employee would be fully eligible for the expansion leave should that employee have utilized regular FMLA in the prior 12 months. The language is not conclusive, and the legislative history is inconsistent in this regard.
• As with the EPSL, emergency responders may be excluded from the benefits provided under the FMLA Expansion.
• Caution: Earlier versions of the FMLA Expansion contained much broader eligibility, such as for an employee’s own COVID-19 related illness, as well as the care of a family member suffering from such an illness. However, regular FMLA would still be available for those situations, but the enhanced eligibility and compensation requirements would not apply. Be aware that several articles on this subject may not be accurate in light of the final version of HR 6201.

A final, unfortunate note is that local governments are specifically excluded from the tax credits that HR 6201 otherwise offers to employers to offset some or all of the costs of EPSL and the FMLA Expansion.

There will likely be several clarifications related to the new legislation, and HR 6201 specifically contemplates that additional rules and regulations may be added by the Department of Labor.

For more information on addressing COVID-19 at the local government level, please also see our previous article: “COVID-19: Essentials for Your Unit of Government.”

COVID-19: Essentials for Your Unit of Government

• No Need to Reinvent the Wheel—Policies and Procedures Are Available

Utilize the resources that others have been diligently working to create. For a COVID-19 operational policy, consider the policy implemented by the City of McHenry.

For a COVID-19 Personnel Policy, consider the policy implemented by the Village of Carpentersville.

For public safety employees, consider the Village of Lake in the Hills Police Department’s orders to officers to minimize unnecessary contact with the public and to ensure sanitary work conditions.

The Illinois Municipal League is also actively monitoring the situation and providing relevant information.

(For a more printer-friendly version of any of these documents, please contact us)

• Prioritize Sanitation and Social Distancing in the Workplace

While advice to combat the spread of COVID-19 will continue to evolve as we learn more, minimizing the risk of contagion to those who are in the workplace is important now.  Ensure that employees are advised:

1. 1. to keep a 6’ distance from others at all time;
2. 2. to wash hands and to use hand sanitizers, which should be readily available;
3. 3. to follow a protocol for properly disinfecting shared spaces and common areas;
4. 4. to use disposable gloves when handling documents, bills, checks, or other items.
5. 5. to avoid touching their faces.

• Consider Postponing Public Activities and Events

With the President of the United States and the Governor of the State of Illinois having declared a state of emergency, a major priority is minimizing the risk of mass contagion at group activities. If your community has group activities, recreation programming, or other non-essential events scheduled, consider postponing or cancelling them. At this point, Illinois restaurants and bars are not open for anything other than roadside or drive-through through March 30. At a minimum, consider that date to be a provisional time frame to postpone non-essential activities. The Governor’s Executive Order also has banned public and private gatherings of 50 or more people. For additional reference, the Center for Disease Control just lowered its recommended prohibition on most group gatherings from 250 people down to 50 people, for the next 8 weeks.

For regularly scheduled government Council, Board, Committee and Commission meetings, consider whether they are necessary. Unless there is a major time-sensitive issue, Committee and Commission meetings can be cancelled or postponed.

As for City Council and Board meetings, there may be bills to pay or other time-sensitive deadlines, which require meetings to occur. Still, consider ways to minimize the need for public meetings, such as if meetings can be consolidated from twice a month to once a month and/or eliminating committee of the whole meetings.

Please note that the Governor’s Executive Order has also suspended the Open Meetings Act requirements that a public body must physically meet to conduct a meeting and otherwise restricting remote attendance.

If meetings must occur, consider promoting if members of the public can listen to the meetings without being in person, such as through audio or video recording. There is also no requirement that all members of the Board or Council must sit directly next to each other on a dais, so spread everyone out to maintain the 6’ distance.

• Develop an HR Protocol to Address Employee Absences

Pending federal legislation, if passed, would require all government employers to pay employees for up to two weeks to address illness or quarantine related to COVID-19, as well as provisions for paying employees 2/3 of their compensation if they are caring for a family member with COVID-19.

Beyond that, consider adopting specific personnel policies that minimize further risk to other employees and the public. This should include, at a minimum, requiring employees with flu-like symptoms to not report to work and exempting them from discipline for not reporting to work, requiring quarantine from work if an employee comes into contact with a person with COVID-19, as well as determining how to reasonably address the point at which such employees should be able to return to work.

Other considerations include isolating certain employees and implementing staggered shifts and ensuring thorough sanitation is done between shifts, so that even if a member of one shift becomes infected, which might necessitate quarantining every other person on that shift, there are still available employees to perform functions.

A sample policy from the Village of Carpentersville is available.

• Identify Whether and How the Public Can Safely Interact with Staff to Pay Bills, Obtain Permits, Etc.

Consider if there is a way for staff to interact with members of the public, without undue risk of exposure to contagion for every day matters, such as bill payments, requesting permits, Code inspections, etc.

At a minimum, promote use of online and other remote access options for regular transactions. Several communities are temporarily shutting down customer service counters and suspending any adverse action for late payment, such as late penalties or shut off of services. By contrast, some communities are still operating counters behind windows and advising staff to utilize gloves and sanitation supplies. What is best for your community is your decision, just identify that you are protecting your employees.

• Minimize Police and Fire Contact with the Public and Provide Protective Gear

First and foremost, ensure that your public safety employees are provided Personal Protective Equipment (PPE), as recommended by the Center for Disease Control. The PPE is to be used with any police or fire encounter with a member of the public.

Also, several law enforcement agencies are implementing other means to minimize potential exposure to contagion, including confirming whether a 911 call for medical assistance requires police presence, directing police officers to not effectuate contact with individuals observed to commit minor non-violent offenses, such as petty traffic offenses, avoiding entry into houses and businesses where not necessary, and ensuring public safety employees are trained to utilize the PPE any time they must come into close contact with individuals.

• Utilize Your Website and Social Media to Share Certified Public Messaging from Agencies and State and Federal Government

The public may want information from your government as to how to address the pandemic. Again, you do not need to reinvent the wheel. There are a lot of agencies providing consistent and authoritative messaging on the subject. The Village of Lake in the Hills has provided a web page with links to several agencies, such as the Center for Disease Control, the World Health Organization, and the local Department of Public Health.

• Ensure Operational Continuity and Spending Authority

Review your local government’s Code and other procedures to ensure that sufficient authority exists for emergency spending and contracting. If your government, for any reason, is not able to convene a Council or Board meeting to authorize expenditures, emergency or otherwise, a provision should allow for emergency spending. Consult with an attorney before implementing any procedure to ensure it is consistent with statutory authority for your unit of local government.

Similarly, consider protocols to mitigate the risk of having an entire department of employees unable to work, and consider having reciprocal aid agreements with other units of government for essential public services. For example, if a police officer tests positive for COVID-19, are there staffing and sanitation protocols that will ensure the entire police department need not be subject to quarantine? Also, does your unit of government have redundancies for water and wastewater certifications in order to operate or a reciprocal service agreement with another water department, if you only have one or two individuals with certifications?

• Stay Calm, Stay Informed, but Don’t Panic

Yes, this is uncharted territory without direct modern precedent. The latest news and medical responses to COVID-19 will remain dynamic for some time to come. However, it is your job to mitigate the risk and ensure procedures address all foreseeable scenarios. Stay alert to new developments, implement policies in a way that you believe best protect your community and your employees, and otherwise buckle up.

If you are reading this article, it is most likely because you have been elected or appointed to a position of leadership in your community. Leadership is tested during a crisis. Consider that the way you and your unit of government respond and act during this pandemic will establish your leadership credentials.  We will do our best to support your efforts in the coming weeks.

Puppy Mill Ordinances Seek to Regulate Conditions of Animals for Sale

Recently, the City of Naperville became the latest of more than a dozen municipalities that have adopted regulations regarding or prohibiting the sale of animals from pet stores. The Naperville ordinance allows the sale of cats and dogs by pet stores but requires that the animal come from non-commercial breeders, such as nonprofit organization dedicated to the “protection and humane treatment of animals.”

Pet stores and breeders are currently subject to licensing, with certain information about any pet sold to be provided by the breeder to the store and from the store to the purchaser. While state licensing standards and other law raises a challenge to a municipality’s ability to further regulate, the ordinances have invoked public safety and welfare concerns to justify the additional local regulation. Naperville, for example, cited the following as a preamble in its ordinance: “inadequate care and conditions at commercial breeders can lead to behavioral and health issues in the puppies and kittens and ultimately lead to increased financial and emotional costs for the purchasing consumer.”

Concurrent with the wave of puppy mill ordinances have been state legislative efforts to regulate inhumane conditions of animals kept and raised by breeders. Two bills have died without action in the past three years, although a new bill has been introduced. The current legislation (HB 4105) is more along the lines of the Naperville option in that it adds standards for operation and sale of animals. But it would not prohibit a pet store from selling a dog or cat entirely.

Municipalities are advised that the issue of pet breeding and sales is publicly sensitive and that an open question remains as to the extent a municipality may regulate or prohibit pet stores from selling animals due to the state business licensing structure.

Author: David McArdle

City and ZRFM Prevail in Case Defining DUI Law

In a recent opinion issued in City of McHenry v. Kleven, the Second District Appellate Court held that a police officer’s failure to continuously observe the defendant prior to submission of a breathalyzer test did not require exclusion of the result from admission into evidence.

The defendant was arrested for driving under the influence of alcohol and transported to the police department for processing. During the 20-minute observation period, the defendant was seated on a stool facing a camera located in the corner of the processing room. The camera was facing down at the defendant and recorded, both visually and audibly, the defendant during the entire observation period. During the observation period, the officer left the booking room on two separate occasions for approximately 2½ minutes and 30 seconds. At the end of the observation period, the defendant provided a breathalyzer sample disclosing a breath alcohol concentration of .168. The trial court found that the officer failed to comply with the 20-minute observation requirement of the Illinois Administrate Code and granted the defendant’s motion to bar the introduction of the breathalyzer result into evidence.

On appeal, the Second District Appellate Court was asked to determine whether an officer’s failure to continuously observe a defendant during the observation period required that the breathalyzer result be barred from admission into evidence, where the booking room video showed that the defendant did not vomit or place a foreign substance into his mouth during the lapses in observation. The Court held that the audio and video recording of the defendant compensated for the officer’s lapses in following the observation requirement of the Illinois Administrative Code. This case is the first reported case in Illinois finding that the use of audio and visual recording was sufficient to substitute for an officer’s observation of a defendant during the mandatory observation period.

Author: Kevin A. Chrzanowski