Reopening the economies of Illinois and Indiana in the face of the ongoing Coronavirus Pandemic is a complicated process. For most of us, quarantines based upon mandatory Stay-at-Home Orders have been in effect since March 2020. Things are changing slowly, and in stages. For details on the quarantine orders, read our earlier discussion in “Coronavirus Lawsuits and COVID19 Legal Claims in Indiana and Illinois: Wrongful Death or Serious Injury.”
COVID-19 Reopening of Indiana and Illinois: Summer 2020
Each state’s reopening process is overseen by its state government, with guidance from public and private safety authorities. It involves reopening all sorts of businesses as well as public and private schools and other facets of everyday life, like camping in parks; traveling across state lines; visiting the sick; and attending worship services. For details on reopening issues, read: Angulo, Frederick J., Lyn Finelli, and David L. Swerdlow. “Reopening society and the need for real-time assessment of COVID-19 at the community level.” Jama (2020).
Indiana Reopening
For Indiana, Governor Eric J. Holcomb oversees the state’s “Roadmap to Safely Reopen Indiana.” Hoosiers have a five stage process for reopening the State of Indiana. From July 4 – July 31, 2020, Indiana is in Stage 4.5, with the exception of Elkhart County which remains in Stage 4 through the end of this month.
This means that in July 2020, the following applies (this is not an exhaustive list; quoting from the guidelines):
- Hoosiers 65 and older and those with known high-risk medical conditions should adhere to social distancing guidelines and remain cautious at work and in their communities;
- Continue remote work as needed;
- Face coverings are highly recommended (on July 27, 2020, they are required in most public settings per Executive Order);
- Social gatherings of up to 250 people may take place following the CDC social distancing guidelines;
- Indoor nursing home and assisted living facilities must have a plan for indoor visitation;
- Bars and nightclubs may operate at 50% capacity adhering to social distancing; and
- Movie theaters, bowling alleys, and similar facilities may operate at 50% capacity, adhering to social distancing guidelines.
Illinois Reopening
Illinois Governor JB Pritzker has likewise implemented a five stage plan to “Restore Illinois.” The state also has a three-tier Mitigation Plan that focuses on both general protections as well as those that are industry-specific.
Within the state, there were initially four different health regions (Northeast Illinois; North-Central Illinois; Central Illinois; and Southern Illinois) designed to reopen stage-by-stage, independently of the others. Each region is currently operating in Stage 4 of the Restore Illinois Plan.
However, in July 2020, Governor Pritzker announced that these regions had been expanded to eleven (11) regions in a Mitigation Plan, as it “…allows for a more granular approach in this phase of the response to COVID-19.” A map of these eleven mitigation regions can be found online; the City of Chicago and Suburban Cook County are each their own separate Reopening Region.
This week, the Chicago region is in Phase 4 of the Illinois Reopening plan which provides for the following (quoting from the Chicago.gov COVID Reopening site):
- Bars, taverns, breweries and other establishments that serve alcohol for on-site consumption without a retail food license will no longer be able to serve customers indoors;
- Restaurants that serve alcohol will be allowed to continue to operate as long as they abide by ongoing COVID-19 guidance and existing regulations;
- Establishments without food may still provide outdoor service as they did under Phase III guidelines;
- Maximum party size and table occupancy at restaurants, bars, taverns, and breweries will be reduced to six people (indoor or outdoor);
- Indoor fitness class size will be reduced to a maximum of 10 people;
- Personal services requiring the removal of face coverings will no longer be permitted (shaves, facials, etc.); and
- Residential property managers are asked to limit guest entry to six people per unit to avoid indoor gatherings and parties.
Danger of COVID-19 Exposure during Coronavirus Reopenings
Of course, many worry about exposure to the potentially deadly virus as a result of these reopenings. Parents are concerned about sending their children to school. Workers fret about becoming sick from COVID-19 while on the job. Loved ones are concerned about husbands, wives, friends, and family members catching the Coronavirus at work or at school, as well as in other activities, like going out to dinner or visiting a loved one in a nursing home or care facility.
Their concerns are valid. The danger of being exposed to Coronavirus and becoming ill with COVID-19 as states reopen is very real, particularly for those who are returning to work. Consider the following:
1. High Risk of Germ Exposure on the Job
Worksites can be filled with germs. For instance, commercial truck drivers have been warned the key pad on a gas pump carry 15,000 times more germs than a public restroom’s toilet seat. Read, “Handwashing 101 for truck drivers,” published by the National Safety Council’s Safety & Health Magazine on July 26, 2020.
2. People Go to Work Sick
Another scary statistic, also reported by Illinois’ NSC: workers may show up for work because they need their paychecks even though they feel ill and may be sick with COVID-19. Read, “COVID-19 pandemic won’t stop some people from going to work sick, survey shows,” published by Safety & Health Magazine on July 22, 2020.
3. Employers Are Hiding COVID-19 Statistics from Workers
Even more frightening, workers are resorting to subterfuge in order to learn how risky their work environment may be for COVID-19 exposure, because employers are keeping Coronavirus statistics secret from them. Read, “Workers Turn Into Sleuths to Track Sicknesses Where Employers Keep Covid Data Secret,” written by Joseph Pisani and Alexandra Olson and published by the Insurance Journal on July 22, 2020.
Given that reopening by definition means returning to places and circumstances where the risk of exposure to COVID-19 is greater than staying at home in quarantine, the duty of care to keep workers safe from harm rises in these circumstances.
During each state reopening, the employers’ duty of care to protect employees is clear. Each worker should understand there are legal responsibilities placed upon employers to take necessary precautions before and during the resumption of business operations.
Ten (10) Things Every Employer Needs to Do before COVID Reopening
For many industries, there will be specific steps that must be undertaken to keep workers safe. These must be followed.
However, a national task force created by the NSC called “SAFER” (Safe Actions for Employee Returns) has published a list of 10 things that each and every employer should do before workers return to the job. The SAFER List goes into more detail on the overall list compiled by OSHA, entitled “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.”
These are considered to be ten (10) necessary and proper activities that need to happen no matter where the place of business is located and no matter the type of work involved.
Accordingly, every employee in Indiana and Illinois should expect their employer to have done the following ten things as reasonable and prudent steps to protect workers from COVID-19 exposure, as part of their legal duty to keep their employees safe on the job.
- Encourage workers to stay home if sick.
- Encourage respiratory etiquette, including covering coughs and sneezes.
- Provide a place to wash hands or alcohol-based hand rubs containing at least 60% alcohol.
- Limit worksite access to only essential workers, if possible.
- Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible.
- Discourage workers from using other workers’ phones, desks, or other work tools and equipment.
- Regularly clean and disinfect surfaces, equipment, and other elements of the work environment.
- Use Environmental Protection Agency (EPA)-approved cleaning chemicals with label claims against the coronavirus.
- Follow the manufacturer’s instructions for use of all cleaning and disinfection products.
- Encourage workers to report any safety and health concerns.
COVID-19 Exposure During and After Reopening in Indiana and Illinois: Claims for Justice
Employers have a duty to employees to keep them safe from harm while on the job. This is a powerful legal duty created by both state and federal law. We have discussed, for instance, the General Duty Clause of the Occupational Safety and Health Act, earlier. See, “Employers’ Duty to Protect Workers during Coronavirus Outbreak.”
However, employers may also be held liable for breaching this duty of employee safety under other legal protections established elsewhere, such as the Americans with Disabilities Act (arguing that serious illness from Coronavirus exposure constitutes a “disability”) along with provisions of the state’s worker compensation statutes as well as its premises liability laws.
If you or a loved one has become ill with COVID-19 then an investigation into whether or not this is the result of an employer’s breach of its duty of care and safety on the worksite may be wise. Factually, these cases may require intense investigation into admissible evidence establishing the employer’s liability. However, workers in Indiana and Illinois deserve to be kept safe – especially during the reopening process.
Failures of employers in Indiana or Illinois to undertake their legally mandated duty to keep employees safe from COVID-19 are wrongs that have legal consequences. Please be careful out there!
