Effective August 7, several new emergency rules have gone into effect related to the COVID-19 pandemic. These rules were adopted by the Illinois Department of Public Health (IDPH) in response to Governor Pritzker’s Gubernatorial Proclamations and Executive Orders. They will remain in place for a maximum of 150 days.
General Provisions
At its core, these new rules were adopted in order to clarify the IDPH’s role in investigating and suppressing the pandemic. Businesses across the state have been somewhat confused as to what authority IDPH had related to COVID-19, particularly in the context of investigations that other agencies, such as OSHA, are allowed to do.
These new rules make it clear that IDPH “has jurisdiction to address dangerously contagious or infectious disease outbreaks to protect the health and lives of the people of the State. The Department shall take means it considers necessary to restrict and suppress dangerously contagious or infectious diseases, especially when existing in epidemic form.”
Restrictions and Requirements
The IDPH has implemented a number of restrictions and requirements, several of which mirror the rules in Governor Pritzker’s executive orders.
Individuals over the age of 2 who are able to medically tolerate a face covering are required to cover their nose and mouth when in a public place and unable to maintain at least a 6-foot distance from others. This requirement is applicable both indoors and outdoors.
Further, any business, service, facility, or organization that is open to the public or employees must require employees, customers, and any other individuals on the premises to comply with the above rule. Businesses that serve food and/or beverages may permit individuals to remove face coverings while eating or drinking, but employers need to require the coverings at all other times. The emergency rule is clear, however, that employers who “take reasonable efforts” to comply with this rule shall be in compliance.
The IDPH is signaling to us that they recognize businesses cannot always control what patrons and employees do, so the best advice now is to do all you can to show that you have these requirements in place at your place of work and that you are enforcing them to the best of your abilities.
IDPH further elaborates on this by saying that, for retail business in particular, “reasonable efforts” will be determined based on all relevant facts. These could include posting signage that requires face coverings be worn, providing face coverings to customers, giving verbal warnings to customers, and requesting customers leave if they fail to wear a face covering.
Schools
Schools (including preschool, public and nonpublic K-12 schools, higher ed, vocational programs, and day cares) must require students, employees, and other individuals to wear face coverings, as well. These institutions may permit face coverings to be removed when eating or drinking, when individuals are outdoors and social distancing is maintained, and while playing instruments, if necessary.
Another rule that mirrors the executive orders is that gatherings of more than 50 people (or more than 50% of building capacity if maximum occupancy is less than 50 people) are prohibited unless exempted by law or executive order.
Enforcement
The IDPH has added “local health departments” to the list of enforcing entities who have authority to make sure that the rules adopted by the Department are enforced.
Despite the fact that businesses have an obligation to make sure individuals are wearing face masks on the premises, the new emergency rule clarifies that no one individual will be held responsible for compliance with the rule on behalf of the business, even if that individual is an owner, officer, principal, or employee of the business. Liability for failure to comply with the rule is limited to the entity itself.
However, the liability for the businesses still exists and comes with consequences for failure to comply. Businesses open to the public will first be given a written notice of non-compliance by an enforcing entity and reasonable opportunity to take “prompt actions” to comply. However, the reasonableness of that time period is at the discretion of the enforcing entity and depends upon the specific facts and circumstances of the case at hand. Enforcing entities may observe until voluntary compliance is achieved or return at a later time to ensure that compliance was achieved depending on the time period provided to allow for compliance.
The secondary level of consequences will be a written order to the business to have all or some of the people on the premises disperse (an “order to disperse”), until such time as the business is in compliance.
Third, if the order to disperse is not adhered to, the business will be subject to penalties pursuant to a Class A misdemeanor.
Investigations and Closures
The IDPH has also clarified its authority to investigate cases of COVID-19 and initiate workplace closures. The emergency rules state that IDPH and local health authorities can investigate cases, suspect cases, or carriers of COVID-19 in a public or private place for purposes of verifying the existence of the disease, locating and evaluating contacts, identifying those who are at risk, and determining necessary control measures. Such investigations may include IDPH officials entering businesses to facilitate these goals.
In the event that two or more suspected cases of COVID-19 occur in any business, organization, school, etc. the owner or person in charge must cooperate with public health authorities in the investigation. Furthermore, the IDPH may order the closure of a business, service, facility or organization, school or day care.
Should you have any questions about COVID-19, the IDPH’s new emergency rules, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.
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