Covid-19 Employer Litigation

Covid-19 Employer Litigation

Employees filed thousands of related personal and class action lawsuits against their employers since the COVID-19 pandemic began in 2020. Learn about the legal responsibilities, potential outcomes, and repercussions regarding COVID-19 litigation and the workforce. 

Employer and Employee Litigation Regarding COVID-19

Since March of 2020, there have been over 2,500 claims and/or lawsuits regarding COVID-19 filed against employers.  Most of these COVID-19 claims were filed against employers in the healthcare, manufacturing and production, retail, public administration, and hospitality industries.  COVID-19 has resulted in significant labor and employment legal issues resulting in new and evolving regulations, standards, and public orders in the United States on both the state and national level.  Due to a constantly changing and evolving body of law and regulations, it can be difficult for employers and businesses to stay on top of these matters.  It is absolutely vital for both employers and employees to understand their legal rights and responsibilities regarding the current coronavirus legal climate.

COVID-19 Legal Timeline

The pandemic impacted many sectors, especially the global economy.  With millions of jobs lost, this event created a sizable economic fallout comparable to the Great Recession in 2008. To combat this, governmental entities passed new laws and regulations to provide support to industries impacted by COVID-19.  This support included funding, as well as additions and amendments to national and local standards. 

American Rescue Plan of 2020

This plan provided $350 billion of emergency funding to communities with plummeting revenues related to the pandemic. Employers received support through small business loans, employee retention, and paid leave credit programs. Eligible citizens could receive economic impact payments and child tax credits. Homeowner and renter assistance funds encouraged homeowners and renters to apply for monetary aid. 

This support should help cover loss of revenue related to pandemic restrictions and efforts towards protecting employee and customer health. The American Rescue Plan also provided financial support to state and local entities. 

Families First Coronavirus Response Act

On April 1, 2020, the Department of Labor’s Wage and Hour Division (WHD) passed the Families First Coronavirus Response Act (FFCRA) as an extension of the American Rescue Plan. Revisions were made in September 2020 to further clarify mandates and employer responsibilities. It required employers to provide 80 hours of emergency paid sick leave (EPSL) to employees, as well as 12 weeks of expanded family and medical leave (EFMLA) related to COVID-19. 

This EFMLA only covered employees who had children that could not attend school or daycare as a direct result of COVID-19 closures.  The first 2 weeks of leave under the 2020 EFMLA are unpaid.  In order to compensate small businesses for loss of revenue, the FFCRA will reimburse them with tax credits. Only small businesses of less than 500 employees fell under these mandates. 

The primary goal of this law was to give employees a way to take care of their health without financial repercussions to the employers for lost productivity.  While the act expired on December 31, 2020, the stimulus package allowed employees to use the remainder of their aid until March 31, 2021.  However, this allowance was voluntary, and the employer could deny the request.

Current COVID-19 Legal Climate

2021 brought with it extensions to The America Rescue Plan and subsequent acts attached.

America Rescue Plan of 2021 (ARPA)

When the president extended The America Rescue plan another year, it came with amendments to specific bill regulations. Also known as the ARPA, specific revisions extend the EPSL and EFMLA of the FFCRA to allow employers with less than 500 employees to provide additional leave from April 2021 through September 30, 2021. Additionally, the allotment of 80 hours for EPSL and 12 weeks for EFMLA resets April 2021, so that eligible employers can still receive tax credits to cover related costs. 

While this act is not mandatory and employers can choose to deny time off requests, they must do so universally.  Under the ARPA non-discrimination mandate, an employer must grant or deny time off requests equally throughout their entire work force.  Failure to treat all employee’s equally will result in a loss of eligibility for tax credits.  This non-discrimination clause does apply separately to both EPSL and EFMLA compensation. 

Another modification to the FFCRA allows employee payout for the first 2 of the allowed 12 weeks’ time for emergency family and medical leave. Additionally, the EFMLA had extended permissions to approve employee leave for other reasons related to COVID-19 besides school closures. The ARPA also increased the FFCRA tax credit allowance from $10,000 per employee to $12,000.

COBRA

The Consolidated Omnibus Budget Reconciliation Act, (COBRA) protects workers and their families who lost health benefits because of unplanned events. COBRA provides for a ‘continuation of coverage’.  Specifically, employers who pay for group health plans for over 20 employees must extend that coverage (temporarily). The plan highlights how employees and their family members may attain continuation of coverage.

When the government extended the ARPA in 2021, there were also modifications to COBRA. From April 2021 through September 2021, employers must cover 100% of COBRA premiums. This requires employers to pay the COBRA premiums for all employees with group health plans who need financial aid as a result of employment termination or loss of hours, regardless of whether the termination or reduction of hours is related to COVID-19.  However, family members of the employee are not eligible for free COBRA for any reason.  Furthermore, employees who are eligible for other group health plans or were terminated for gross misconduct may not receive COBRA. Additionally, employees and qualifying family members on COBRA as of April 1st have a “second chance” to re-enroll for coverage. This applies even if they were involuntarily terminated for reasons besides misconduct.

The federal government will reimburse employers for covering the cost of COBRA for their employees through a dollar-for-dollar tax credit. This credit will be applied to quarterly payroll taxes and applied against the employer’s allotment of Medicare hospital insurance tax. If this does not cover the employers’ expenses towards COBRA, the employer can apply for another tax credit which will pay for the additional amount. Employers are also must alert employees of this benefit and provide instruction on how to access coverage, especially secondary enrollment. This legal requirement expires May 30, 2021. Notice should be provided no more than 45 days and no less than 15 days before COBRA expires. 

Employees have the responsibility of notifying their health care plan when they are eligible for COBRA. This benefit is subject to tax penalties.

Paycheck Protection Program

Restaurants, bars, and nonprofits were also added to the list of eligible employers to apply for assistance grants and loans. Loans can be attained through the Paycheck Protection Program offered by the US Small Business Administration. Also known as PPP, the goal is to incentivize small businesses to keep their employees on payroll. PPP loan forgiveness is also available to eligible borrowers. The Paycheck Protection Program expires on May 31, 2021. 

Illinois State Regulations On COVID-19

When HB 2455 expired in 2020, the Governor eventually enacted HB 4276 for occupational disease claims in Illinois. Signed into law on February 26, 2021, HB 4276 extends the presumption legislation for front line workers. 

After the COVID-19 vaccination rollout began, the Illinois Department of Labor (along with other states) added requirements for employers. They consisted of guidelines regarding employee leave, time, and flexibility for vaccinations. After March 2021, if employers require coronavirus vaccinations for employees, they should also provide paid leave or compensation. This is to compensate employees for the time they must take off to get both doses of the vaccine. 

The Employee Sick Leave Act also highlights employer requirements. Employers must grant the same permissions and benefits for time off for COVID-19 related medical appointments involving their immediate family. This includes children, stepchildren, spouse, domestic partners, siblings, parents, mother, and father-in-law, grandchildren, grandparents, or stepparents. 

12 Frequently Asked Questions About Hemp Litigation and  Related Litigation

12 Frequently Asked Questions About Hemp Litigation and Related Litigation

Here are the answers to 12 common inquiries about hemp litigation and the legal developments surrounding it in the United States.

What is hemp?

Researchers discovered hemp thousands of years ago. Biologically, it’s a plant that’s part of the Cannabis genus, which also houses the marijuana plant. People can extract a bast fiber from hemp that they can use to manufacture a number of industrial items. These include paper, textiles, bioplastics, biofuels, and cordage to name a few. Hemp also produces edible seeds manufacturers can utilize in food. A derivative of hemp is cannabidiol, which people commonly refer to as (CBD).

What is cannabidiol (CBD)?

Cannabidiol, or CBD, is a non-psychoactive phytocannabinoid compound. Processors can extract CBD from both hemp and marijuana plants. Hemp CBD is federally legal and should test at or below the legal limits for tetrahydrocannabinol (THC). CBD from marijuana, by legal definition, will test higher. Some who use CBD compounds report therapeutic benefits for pain, anxiety, nausea, or inflammation

Is there a difference between hemp and marijuana?

Both marijuana and hemp come from the same genus, Cannabis, and are taxonomically the same species. Also, they’re both parts of the Cannabaceae family and mainly differ in THC content. Lawmakers recently classified hemp as part of the Cannabis plant if it tests under 0.3% concentration of THC.  While marijuana will be above that percentage, rendering it psychoactive.

Is hemp considered a drug?

The legal definition of a “drug” is any mind-altering substance (legal or illegal) that people ingest with the intention to change or treat a certain physiological or psychological issue. Only recently, however, lawmakers changed the definition to exclude hemp as a drug despite its relation to marijuana (a classified drug). This is because hemp has equal or less than 0.3% of THC, the psychoactive substance in Cannabis. When THC levels are this low, it usually can’t affect or alter someone’s state.

Why did hemp get banned?

Since marijuana and hemp are both Cannabis genus, the law formally banned them in 1970 under the Controlled Substances Act. Specifically, it outlawed any Cannabis plant without differentiating the two, despite hemp’s lack of potency.

How is hemp legally defined?

The 2018 Farm Bill re-defined hemp to the US and beyond, separating it from marijuana and reclassifying it as cannabis (Cannabis sativa L.). Specifically, “any part of the plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers,” with no more than 0.3% concentration of THC by dry weight.

Is hemp legal in Illinois?

Yes. You can have hemp that contains less than 0.3% THC, as long as a formal institution provided the test. Adding to that, if it has more than 0.7% THC, it must be destroyed.

Can I grow hemp in Illinois?

Yes. Farmers, universities, and the Department of Agriculture can grow hemp. However, this only applies if there’s a research aspect. Additionally, anyone who wants to grow the plant must apply and get approved for the Hemp Grower’s License.

Can I process hemp in Illinois?

Yes. According to Illinois law, those who wish to process hemp must register with the Department of Agriculture.

Is CBD hemp flower legal?

Yes. If the hemp-derived CBD has less than 0.3% THC, it’s federally legal under the Farm Bill Act from 2018.

Is the hemp plant federally legal in the US now?

Yes. After the president signed the Farm Bill into law in 2018, hemp and CBD were federally legal in the U.S. However, this was only if it formally tested under 0.3% THC.

What is the legal history of hemp?

The Marijuana Tax Act in 1937 was the first of many to negatively impact Cannabis, including hemp and marijuana. Moreover, this law regulated and taxed anyone who imported, cultivated, or possessed Cannabis. Next, came the Boggs Act of 1951 and the Narcotics Control Act, both of which effectively inflated restrictions and penalties. These limits applied to anyone who grew, processed, used, or manufactured any Cannabis related thing. After that, lawmakers passed the Controlled Substances Act of 1970. This further defined Cannabis as a controlled, illegal, schedule I drug.

In 2004, the Ninth Circuit Court decided to protect the sales of hemp foods and body care products in the U.S. Later, the president introduced the Agricultural Act of 2014 (older farm bill). This gave research institutions permission to farm hemp if state legislation allowed. Adding to that, in 2018, the amended bill removed hemp and its derivatives as a controlled substance if below legal limits for THC.

Recently, the Cannabis Regulation and Tax Act (410 ILCS 705/) legalized the recreational use, consumption, and production of all Cannabis in Illinois. Additionally, it became law on January 1, 2020. a

Do you have more questions about hemp litigation in Illinois or anywhere else in the United States? Please contact one of our attorneys. They focus on related legal matters and are happy to oblige.

Rescend COVID-19 IWCC Rule

Rescend COVID-19 IWCC Rule

On April 27, 2020, the Illinois Workers’ Compensation Commission rescinded the previously enacted “Emergency Rule” regarding burden of proof for injured employees diagnosed with COVID-19.  Specifically, the actions taken today by the Illinois Workers’ Compensation Commission rescinded the actions it had previously taken on April 13, 2020, when the IWCC added an Emergency subsection to its Rules of Evidence addressing the evidentiary burden in proving a claim for benefits under the Illinois Workers’ Compensation Act/Illinois Occupational Disease Act in a case of COVID-19 exposure. 

It appears the action taken today by the Illinois Workers’ Compensation Commission in rescinding its Emergency Rule was in response to the granting of a temporary restraining order in a suit filed in Sangamon County.  On April 22, 2020, the Illinois Manufacturers Association and the Illinois Retail Merchants Association filed a Complaint in Sangamon County seeking a temporary restraining order against the IWCC’s Emergency Rule.  On April 23, 2020, Judge John Madonia entered a temporary restraining order enjoining the IWCC from implementing the Emergency Rule.

With the Illinois Workers’ Compensation Commission rescinding the Emergency Rule, it makes the Order entered in Sangamon County on the temporary restraining order moot.

It is important to note that this not likely the end of this issue.  Comments from both the Illinois Governor and the IWCC Chairman make it clear there will be ongoing discussions about how to extend additional protection to Illinois workers during this COVID-19 pandemic.  Our office continues to monitor this situation and provide our clients guidance during these very difficult times.

If you have any questions about the latest action by the IWCC regarding COVID-19 IWCC or any other workers’ compensation questions, please contact attorney Jennifer Barbieri.  Ms. Barbieri focuses her practice on representing employers and insurance companies in claims including workers’ compensation and labor and employment litigation.

Employer’s Liability for COVID-19

Employer’s Liability for COVID-19

On April 13, 2020, the Illinois Workers’ Compensation Commission through its rule-making authority added an Emergency subsection to its Rules of Evidence addressing the evidentiary burden in proving a claim for benefits under the Illinois Workers’ Compensation Act/Illinois Occupational Disease Act in a case of COVID-19 exposure.  Below is a brief synopsis of this new rule and how this new rule is going to impact employers of essential workers. 

Emergency Rule:  Section 9030.70 Rules of Evidence:

            In added section 9030.70(a)(1), the IWCC has indicated that in any proceeding before the Illinois Workers’ Compensation Commission where the injured employee is a “Covid-19 First Responder” or “Front-Line Worker” (as defined in the next subsection), if the injured worker sustains a COVID-19 injury, there is a rebuttable presumption that the injured workers’ exposure arose out of and in the course of the employee’s employment.  There is also a rebuttable presumption that the injured workers’ condition is causally connected to the hazards or exposures of the injured workers employment.

            In added section 9030.70(a)(2), “COVID-19 First Responder or Front-Line Worker” includes police, fire personnel, emergency medical technicians, paramedics, all individual employed and considered as first responders; health care providers engaged in patient care; correctional officers; and crucial personnel identified in various executive orders including grocery store employees; food, beverage and cannabis employee’s in 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 off-premises consumption; 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 other executive orders; manufacture, distribution, and supply chain for critical products and industries; critical labor union functions; hotels and motels; and funeral services.

How this Rule impacts Employers of “Front-Line” Workers:

It is important to note that this is an evidentiary rule that shifts the burden of proof from the employee to the employer.  In the case of COVID-19, this new rule states that if a “front-line worker” becomes infected with COVID-19, the presumption is the condition was contracted from his/her employment.  At that point, the employer is not required to eliminate any occupational as a possible contributing cause of the employee’s COVID-19 condition.  Rather, at that point, the employer must introduce some evidence of another potential cause of the employee’s COVID-19 condition.  If such evidence is produced by the employer, then the Arbitrator/Commission would be free to determine the factual question of whether the occupational exposure was a cause of the employee’s COVID-19 based upon the evidence presented without the benefit of the presumption to the claimant.

As the rule is currently written, there is a large pool of employers that will have potential exposure for employees who contract the COVID-19 disease.  Documentation and immediate investigation at the time an employer learns of an employee’s COVID-19 diagnosis will be imperative to properly evaluate the employer’s potential exposure for such a claim.

If an employer is found liable for an employee’s COVID-19 diagnosis, exposure will include the following benefits:  medical expenses (including, but not limited to, doctor’s visits, any hospitalization, and any follow-up care), the employee’s time off of work, and permanency benefits.  The permanency benefits could result in significant exposure as with some cases it unclear what the future holds for individuals diagnosed with this condition.  PPD benefits in these types of cases could include awards for “loss of man as a whole” or even death benefits.

With this new rule, there is a lot for employers to consider.  If you have any questions about the new COVID-19 IWCC Rule or any other workers’ compensation questions, please contact attorney Jennifer Barbieri.  Ms. Barbieri focuses her practice on representing employers and insurance companies in claims including workers’ compensation and labor and employment litigation.

Donation to Illinois Center for Autism

Donation to Illinois Center for Autism

BELLEVILLE, ILL. (August 15, 2019) – Clayborne & Wagner LLP has joined the Illinois Center for Autism’s Pedal for Autism as a Bronze Sponsor for this year’s fundraising event held on August 19th.

The Illinois Center for Autism (ICA) is a not-for-profit, community-based, mental health treatment, and educational agency dedicated to serving people with autism. Referrals are made through local school districts, hospitals, doctors,and the Department of Human Services.

“Our firm shares the same vision as the ICA – ‘that each individual is unique and defined by possibilities and not limitations,’” said Michael L. Wagner, Partner at Clayborne & Wagner LLP. “Anything we can do to help raise awareness of this great organization and their efforts, is something we will gladly do, time and time again.” 

“The ICA is a one-of-a-kind organization we are very proud to support,” notes James F. Clayborne Jr., Partner at Clayborne & Wagner LLP. “Children and adults with autism spectrum disorder deserve to be presented with the same opportunities as their neighbor, and we couldn’t be happier to encourage that endeavor with this sponsorship.”

For more information about Clayborne & Wagner LLP, please visit www.cswlawllp.com.

Belleville Khoury League Sponsorship

BELLEVILLE, ILL. (August 13, 2019) – Clayborne & Wagner LLP has joined the Belleville Khoury League as a Hole Sponsor for this year’s fundraising event held on September 8th.

Belleville Khoury League is a non-profit, 501(c)(3) organization operating in Belleville, Illinois and affiliated with the George Khoury Association of Baseball Leagues. The organization has been serving the youth of the Belleville community for over 60 consecutive years.

Clayborne & Wagner LLP is a firm committed to supporting organizations that give back to our youth.

“The Belleville Khoury League is just a fantastic local organization,” said James F. Clayborne Jr., Partner at Clayborne & Wagner LLP. “The volunteers and leaders of this group are doing our youth a great service – not by just giving young people a place to play ball, but by providing them with opportunities to learn the traits of sportsmanship, respect, and integrity. We are thrilled to serve as a sponsor and look forward to doing so again in coming years.”

“Investing in our youth is one of the best ways we can give back to the next generation,” notes Michael L. Wagner, Partner at Clayborne & Wagner LLP. “These kids, all kids, are worth that much and by sponsoring this fundraising event, we are proudly demonstrating how much we believe in and support our local youth.” 

For more information about Clayborne & Wagner LLP, please visit www.cswlawllp.com.