FAQ - COVID and Closures Leave and Pay Bill, HB1167
On April 5, 2022, Governor Pritzker signed a revision to a bill he previously vetoed. The new bill, HB1167 and now Public Act 102-697, requires employers to provide reimbursement of leave utilized due to COVID-19 for fully vaccinated employees of schools. Unfortunately, as with many new laws, there may be many more questions than answers. We hope this short FAQ will help address some of those questions. As always, we advise that patience will reveal better understanding of the consequences of decisions and the balance of risks may become clearer.
1. What is “fully vaccinated”?
“Fully vaccinated” means 2 weeks after receiving a 2-dose series of vaccine or 2 weeks after receiving a single dose vaccine authorized for emergency use or approved by the FDA.
“Fully vaccinated” also includes any recommended booster doses for which the individual is eligible upon the adoption by the Department of Public Health of any changes made by the Centers for Disease Control (“CDC”) and Prevention of the United States Department of Health and Human Services to the definition of “fully vaccinated against COVID-19” to include any such booster doses.
At this time, while boosters are recommended, the CDC has yet to change the definition of fully vaccinated to require them to be considered fully vaccinated.
2. Who is entitled to restoration of leave or benefits?
Employees who are fully vaccinated against COVID-19 no later than five weeks after April 5, 2022 are entitled to restoration of COVID-19-leave.
According to the law, during any time when the Governor has declared a disaster due to a public health emergency related to COVID-19 and rules have been issued that restrict an employee of the school district from being on school district property because the employee (i) has a confirmed positive COVID-19 diagnosis via a PCR test for COVID-19, (ii) has a probable COVID-19 diagnosis via an antigen test, (iii) has been in close contact with a person who had a confirmed case of COVID-19 and is required to be excluded from the school, or (iv) is required by the school or school district policy to be excluded from school district property due to COVID-19 symptoms, the employee of the school district shall receive as many days of administrative leave as required to abide by the public health guidance, mandates, and requirements issued by the Department of Public Health, unless a longer period of paid administrative leave has been negotiated with the exclusive bargaining representative if any.
Such leave shall be provided to an employee for any days needed to care for a child of the employee prior to April 5, 2022, provided that the employee receives the doses required to meet the definition of “fully vaccinated” no later than 5 weeks after April 5, 2022.
3. Going forward, under what circumstances is an employee entitled to administrative leave as a substitute to using sick leave?
Employees who are fully vaccinated against COVID-19 no later than 5 weeks after April 5, 2022 are entitled to COVID-19-leave.
According to the law, during any time when the Governor has declared a disaster due to a public health emergency related to COVID-19 and rules have been issued that restrict an employee of the school district from being on school district property because the employee (i) has a confirmed positive COVID-19 diagnosis via a PCR test for COVID-19, (ii) has a probable COVID-19 diagnosis via an antigen diagnostic test, (iii) has been in close contact with a person who had a confirmed case of COVID-19 and is required to be excluded from the school, or (iv) is required by the school or school district policy to be excluded from school district property due to COVID-19 symptoms, the employee of the school district shall receive as many days of administrative leave as required to abide by the public health guidance, mandates, and requirements issued by the Department of Public Health, unless a longer period of paid administrative leave has been negotiated with the exclusive bargaining representative if any.
Additionally, an employee of a school district or university shall receive paid administrative leave as above, unless a longer period of paid administrative leave has been negotiated with the exclusive bargaining representative if any, to care for a child of the employee if the child is unable to attend elementary or secondary school because the child has:
(1) a confirmed positive COVID-19 diagnosis via a PCR test for COVID-19;
(2) a probable COVID-19 diagnosis via an antigen test;
(3) been in close contact with a person who has a confirmed case of COVID-19 and is required to be excluded from school; or
(4) been required by the school or school district policy to be excluded from school district property due to COVID-19 symptoms.
4. Can a school district reimburse staff at a lower rate of pay than their regular rate of pay, or dock proportionate leave benefits?
No, the qualifying employee is entitled to regular rate of pay for qualifying-leave without a loss of benefits or reduction in pay.
5. Can a school district require documentation of illness to reimburse leave?
Although the law clearly sets forth that the District has the right to seek documentation, schools should be aware of the practical limitations of seeking documentation, and should be prepared to address consequences regarding their own rules for submission of leave documentation, including limitations on the number of days before the school may ask for documentation of illness (which is set forth in 24-6 of the Illinois School Code as 3 days of absence).
6. What if the definition of “fully vaccinated” changes to include a booster? Can the school change administrative leave retroactively?
No.
7. What are the TRS and IMRF positions on the reimbursement of days?
As of the date of this writing, TRS has yet to weigh in formally on the new law. It is apparent that the legislature intended to categorize this leave as “administrative leave” pursuant to TRS rules exempting administrative leave from sick leave calculations and providing regular service credit for administrative leave. However, TRS has yet to confirm how it will treat leaves restored or newly applied, or what kind of documentation (if any) it will require to prove the same.
8. What if a school receives a demand to bargain? Must the school bargain?
Yes. Wages, hours, and terms and conditions of employment changes are mandatory subjects of bargaining, and the changes to the law affect both wages and terms and conditions of employment. Schools will likely see demands to extend or restrict benefits among groups.
9. What is a school required to do to "restore" a COVID-leave?
The law permits a school or university to require documentation, but does not set forth what documentation is required. Without TRS or IMRF information, it is unclear, at this time, what documentation will be required, if any.
10. What if the District wishes to extend the benefit of COVID leave to all employees, regardless of vaccination status?
Until TRS and IMRF weigh in, it is unclear what, if any, effect broadening of leave will have. Wages, hours, and terms and conditions of employment changes are mandatory subjects of bargaining, and any such extension of the benefits to other groups affects both wages and terms and conditions of employment. Schools will likely see demands to extend or restrict benefits among groups.
11. What about discriminatory application risk? Can an employee argue the law is discriminatory?
It would be fair to say that there are individuals on staff at many schools that would be inclined to challenge the discriminatory application of the law to vaccinated individuals because the law does not contain an exception for religious or disability accommodation. It is unclear how the courts will review such a claim.
12. OK, so we wait to hear from TRS and IMRF, but in the meantime the 5-week clock is running for employees to get vaccinated in order to attain the benefits set forth in the law, which the employees must meet in order to get backpay and the ability for leave going forward. What do we do?
Make sure employees are aware of the law and what it says. But take time to implement changes to the school’s program. Proof may be requested at a later time, and with more information about the balance of risks, schools and universities may have a better handle on the best path forward.
13. Are there other provisions in the new law that apply to other, non-COVID situations?
Yes. The law also provides for the payment or compensation of educational support employees, as well as contractors who provide educational support employees on any school closure day. These closures include any school closure or e-learning day if the closure precludes them from performing their regularly scheduled duties and employees would have reported for work but for the closure. The law was amended to make clear that these new requirements do not apply if the day is rescheduled and the employee will be paid their daily, regular rate of pay and benefits for the rescheduled day when they will work.
14. Under what circumstances must a school provide payment or compensation to a contractor or educational support staff during a closure?
A school district or university shall make full payment that would have otherwise been paid to its contractors who provide educational support services to the district their daily, regular rate of pay and benefits during any school closure or e-learning day if that closure precludes them from performing their regularly scheduled duties and employees would have reported for work but for the closure.
The employees who provide the support services covered by such contracts shall be paid their daily rates and benefits as defined by their local operating agreements or collective bargaining agreements, except this requirement does not apply if the day is rescheduled and the employee will be paid their daily, regular rate of pay and benefits for the rescheduled day when they will work.
This provision also applies retroactively for the 2021-2022 school year. A school district must also make full payment or reimbursement to an employee or contractor as specified above for any school or university closure or e-learning day in the 2021-2022 school year if the employee or contractor did not receive pay or was required to use earned paid time off, except this requirement does not apply if the day is rescheduled and the employee will be paid their daily, regular rate of pay and benefits for the rescheduled day when they will work.