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On February 10, 2022, Congress voted in favor of the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”. President Biden is expected to sign the legislation into law in the near future. Just as the title indicates, this Act allows victims of sexual harassment and/or assault in the workplace to file lawsuits in state or federal court, ending the commonly used practice of employers forcing these types of claims into mandatory, confidential arbitrations. The law further renders any prior agreement to waive the right to proceed as a class or joint action unenforceable.

Typically, in Illinois when an employee is subjected to sexual harassment and/or assault at work, he or she will file a charge with the Equal Employment Opportunity Committee and/or the Illinois Department of Human Rights, the state and federal agencies assigned to investigating these types of charges. If the charge is not resolved during that process, he or she will have the right to proceed to file a lawsuit in state or federal court. However, prior to this law’s passage, if the employee had signed an employment agreement prior to the incidents in question, he or she may have waived the right to file a lawsuit in court. Instead, the only option is to proceed to a private, confidential arbitration. It is estimated that over 60 million workers in the United States have waived this right as part of their employment contracts.

Most of the time, employers want to keep these types of lawsuits out of the court system and in private arbitration. These arbitrations typically proceed quickly, allowing for less time to prove the facts, and are less expensive for employers. Arbitrators often award lower damages than judges or juries award. The appeals process is typically much more difficult after arbitration than it is after a trial in court, and most cases end after the arbitrator’s decision has been rendered. If there are multiple victims of sexual harassment and/or assault pursuing their claims against the same employer, they must pursue those claims in separate arbitrations instead of as a class or jointly. Finally, and very importantly, arbitrations are almost always confidential, meaning that neither the general public, nor other victims, will know the outcome of the arbitrations. After the #MeToo movement, this is arguably very important to many employers.

Every US household can now order 4 free at-home coronavirus test kits through the U.S. Postal Service. The link below will take you directly to the USPS official website to place your order.

https://special.usps.com/testkits

This month our winter newsletter featured our Social Security team and some delicious winter dessert recipes. Click the link to read the full newsletter Meet our Social Security Team

Did you know that signing up for a free and secure my Social Security account provides personalized tools for everyone, whether you receive benefits or not? You can use your account to request a replacement Social Security card, check the status of an application, estimate future benefits, or manage the benefits you already receive? Since Social Security closures began in March 2020, the Social Security Administration has taken steps to provide a majority of information online?

I don’t receive benefits, why should I create an account?

Even if you are still actively working there are many essential services that can be handled online. You can request a replacement Social Security card; Get personalized retirement benefit estimates; Get estimates for spouse’s benefits; Get proof that you do not receive benefits; Check your application status and more!

As gas prices continue to soar, another major concern is impacting many Illinois drivers. According to data kept by the National Highway Traffic Safety Administration, 42,060 people died in motor vehicle traffic crashes in 2020. https://www.usatoday.com/story/money/cars /2021/03 /05/ pandemic-travel-traffic-deaths-up-8-2020-despite-driving-less/4590942001/ This figure represents an 8% increase from 2019. The increase in fatalities is the highest seen in nearly one hundred years – back when many people were driving their brand new Ford Model T’s. With vehicle traffic down sharply during the pandemic, many would wonder why this increase has happened. The root cause of this increase appears to be a substantial rise in high speed fatalities all of which are a result of drivers simply disregarding perhaps the most basic traffic rule. While many of the fatalities seen on our highways before the pandemic were due to violent trucking crashes, the trend on our roadways appears to be increasing due to the reckless operation of passenger cars. As we reach the halfway point in the year, it does not appear that this trend is reversing with increased traffic on our roadways. https://www.cmap.illinois.gov/ updates/all/-/asset_publisher/UIMfSLnFfMB6/content/covid-affects-transportation-update

Reducing speed is a simple way to prevent injuries and death, but being cautious on the road and watching out for motorcyclists, bicyclists, and pedestrians is probably even more important. The reason for this is because most traffic crashes happen within 4.6 miles of our homes.https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4375775/#:~:text=The%20median%20distance%20between%20home,occur%20very%20close%20to%20home. Even more concerning is that the average vehicle to pedestrian collision is 1.1 miles from home and a vehicle to cycle collision is 1.2 miles from home. As many of our fellow citizens seem to be demonstrating less consideration for each other on the roadways, the sheer volume of e-commerce deliveries are increasing the risk of harm to our loved ones. It’s fair to estimate that e-commerce deliveries by Amazon, UPS, and FedEx have grown 13-16% every year with no slow down on the horizon. https://www.truckinginfo.com/324451/how-is-the-growth-of-e-commerce-affecting-trucking It stands to reason that the more e-commerce orders we place, the more the risk of harm increases from e-commerce vehicle collisions of all kinds. Although UPS maintains a union workforce, their competitors do not and will not. Along with a non-unionized fleet of drivers comes more turnover, less training, and generally less incentive for safety. It is dangerous enough that Amazon clearly prioritizes profits over safety, but when Amazon’s Flex drivers are injured they are immediately denied workers’ compensation benefits because Amazon considers them independent contractors rather than employees despite telling the Flex drivers how to do their jobs. As the movement to unionize at Amazon grows, there is hope that Amazon Flex drivers will be given fairer treatment by a company worth nearly two trillion dollars.

Not unlike Amazon, gig economy companies like Lyft, Uber-Rasier LLC, DoorDash, GrubHub, and Postmates have a business plan that places profit over prevention of injury. Quite simply, these taxi replacements and food delivery companies enjoy all the benefits of having employees without any of the responsibilities that come with it. Uber drivers are not paid by Uber. Instead, they are paid by Rasier LLC. This allows Uber to control more drivers on more roads and never take responsibility for their driver’s when they cause collisions. Gig economy companies have only recently begun conducting background checks, but alarmingly they do not require their drivers to have any special licensing or any special training. Quite simply, if gig economy employees were given basic training, they would drive safer. Not surprisingly, Uber is reluctant to release many of the traffic crash statistics that they compile. https://techcrunch.com/ 2019/12/05/ubers-fatal-accident-tally-shows-low-rates-but-excludes-key-numbers/ Clearly, the frequency of injuries and fatalities will increase due to gig economy companies like Amazon, Lyft, Uber, Doordash, Grubhub, and a Postmates. Unless and until these companies are held accountable in court, they will take advantage of victims regardless of whether they are injured by a gig economy vehicle or are injured driving a gig economy vehicle.

This discussion is a continuation of our firm’s information regarding your rights for COVID related injuries. Please view Part 1 on the firm’s YouTube Channel at: https://youtu.be/dO7G6MBxNR4 for Richard Johnson’s discussion of COVID injuries being covered under The Illinois Occupational Disease Act and Illinois Workers’ Compensation Law.

As our nation is seeing a rapid rate of COVID vaccinations being administered, unfortunately some individuals will have adverse reactions that result in serious injury or death. In Illinois, it is well established that adverse reactions as a consequence of employer required vaccinations may be compensable and entitle the injured worker to workers’ compensation benefits.

Legal authority for this type of injury is set out in Section 11 of The Illinois Workers’ Compensation Act. The Statute provides as follows:

As the long-awaited COVID-19 vaccinations become increasingly available to the general public, many employees and unions may be questioning whether it is legal for employers to force their employees to receive vaccinations as a condition of employment. Interestingly enough, Katz, Friedman’s Senior Labor Partner, Stanley Eisenstein, was recently asked that very question in an appearance on Channel 7, ABC Chicago’s local news affiliate.

The short answer to the question is, “Yes.” Generally speaking, employers in the United States can require employees to receive vaccinations as a condition of continued employment. However, there may be some exceptions. For instance, if you are part of a union covered by a collective bargaining agreement, then your employer may have a duty to bargain with the union over any mandatory vaccination policies and procedures. There may also be exceptions or limitations on an employer’s ability to mandate vaccinations under certain federal employment statutes if, for instance, an employee requests an exemption based upon a disability or a sincerely held religious belief.

General Right of Employers to Require Vaccinations for At-Will Employees

As the world continues to slog through the COVID-19 (Coronavirus) pandemic, it is impossible to escape the phrase “essential worker.” We hear the phrase peppered into news reports and conversations so frequently that it has become a received truth – that is, something we largely accept without stopping and thinking critically about its meaning. But what precisely does “essential worker” mean, and to whom does it apply?

A Google search for “essential worker” retrieves results in the millions, so there is no quick and easy way to definitively navigate the boggy question of who an essential worker is. Fortunately for Illinoisans, Governor J.B. Pritzker’s Executive Order 2020-10, issued in March 2020 at the beginning of the pandemic, helps provide some clarity. Section 12 of the Executive Order defines “Essential Businesses and Operations” as healthcare and public health operations, human services operations, essential government functions, essential infrastructure, and a swathe of other businesses, including – but not limited to – grocery stores, pharmacies, food and beverage production, animal shelters, charities and social services, newspapers, radio stations, gas stations, financial institutions, hardware stores, building and construction trades, mail and delivery services, laundry services, restaurants, transportation, day cares, residential facilities, and a litany of other entities – the full list is available here.

Defining what an essential worker is more than just an academic exercise – it has real-life consequences for those workers and their families. This is most especially evident with the advent of the “COVID presumption” the General Assembly added to the Illinois Occupational Diseases Act last year and updated last week. This creates a rebuttable presumption that those essential workers covered in the Executive Order who contract COVID-19 did so in the workplace – provided that their work requires them to encounter members of the general public or to work in locations of more than 15 employees ¹. For fuller context, in 2020 Governor Pritzker signed into law HB2455, which created this rebuttable presumption; however, this presumption was only applicable to cases in which a diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020². On January 13, 2021, the Illinois General Assembly passed HB4276, which extends this “COVID presumption” to diagnoses through June 30, 2021.