As the IMA reported on August 11, 2020, the Joint Committee on Administrative Rules failed to block Governor JB Pritzker’s new rule providing for criminal penalties (Class A misdemeanor) on employers that do not enforce his face mask mandate.  JCAR is a twelve-member bipartisan and bicameral committee that reviews administrative rules proposed by an Administration.  It takes 8 votes to block a rule from taking effect and the JCAR vote was 6-5 with all six Republicans voting against the rule and five Democrats supporting the Governor’s rule.

The IMA strongly supports and encourages the use of face masks to stop the spread of the virus. Studies have shown that wearing masks can reduce the spread of aerosols by 85 percent. However, we opposed yesterday’s rule because it was poorly crafted and put the onus of fines and penalties on employers who are charged with enforcing it.

This rule take effect immediately and here are some additional details and guidance to help you navigate and operate in full compliance. While the mask mandate applies to all employers, these new fines and penalties are aimed at consumer-facing businesses that are open to the public.

Q: What businesses may be fined under this new rule?

A: This new rule applies to any business, service, facility, or organization open to the public. In these buildings open to the public, individuals should wear face coverings when unable to maintain a 6-foot social distance. Generally speaking, manufacturing facilities are not open to the public and will not be significantly impacted by these new fines and penalties. Businesses may also be subject to penalties for hosting gatherings of more than 50 individuals.

The specific language in the Administrative Rule provides “any businesses, service, facility or organization open to the public or employees shall require employees, customers, or other individuals who are over the age of two and able to medically tolerate a face covering to cover their nose and mouth with a face covering when on premises and unable to maintain a 6-foot social distance. Businesses, services, facilities or organizations that offer food or beverages for in-person consumption may permit employees, customers, and other individuals to remove their face coverings while eating or drinking, but must require face coverings at all other times. Businesses, service, facilities or organizations that take reasonable efforts to require patrons and employees to wear a face covering shall be in compliance with this subsection.”

Q: If my manufacturing company is not open to the public, do my employees have to wear masks?

A: Yes.  The Governor’s previous executive orders and state requirements under the phased in reopening require employees to wear face masks when they are unable to socially distance by maintaining a 6-foot distance from other employees.

The Governor first instituted the state’s mask mandate on May 1, 2020 with Executive Order 2020-32. The EO states: “Any individual who is over age two and able to medically tolerate a face-covering (a mask or cloth face-covering) shall be required to cover their nose and mouth with a face-covering when in a public place and unable to maintain a six-foot social distance. Face-coverings are required in public indoor spaces such as stores.”

Q: Can my business be fined for a first offense?

A: No. There is a three-step process with fines being the last step of the process. The steps include:

  1. Written notice to the employer citing non-compliance by an enforcing entity.  The employer will have a reasonable time period to come into compliance based on factors such as the public health risk, number of individuals at risk of exposure, the size of the building and crowd, nature of the activity and whether it is being conducted indoors or outdoors.
  2. Written notice to disperse. If a business has not complied with the written warning in a reasonable period of time, the enforcing entity may issue a written order requiring some or all of the persons on premises to disperse until such time as the business is in compliance.
  3. Criminal Citation: If a business does not comply with the written warning or notice to disperse, a business may be subject to a Class A misdemeanor which includes a fine of up to $2,500. Fines may also be assessed if the business (1) refuses to comply with a written order to disperse, (2) engages in repeated violations after receiving two or more written notices of non-compliance, or (3) engages in repeated violations after receiving one or more written orders to disperse.

Q: What are the penalties for violating the rule?

A: A Class A Misdemeanor which includes a $75 to $2500 fine and/or up to 365 days in jail. The Department of Public Health FAQs provide that only fines of $75 to $2,500 will be issued (no jail time) but ultimately any decision would be made by local states’ attorneys and judges.

Q: Who is liable for the penalty?

A: The rules provides that only the business entity will be penalized – not individual employees.  No individual, owner, consumer, visitor or otherwise is liable for the penalty.

Q: Who enforces the rule?

A: All local boards of health, health authorities and officers, police officers, sheriffs, and all other officers and employees of the State or any locality, including the Department and certified local health departments shall enforce the rules.

Q: Can the local health department or the Illinois Department of Public Health investigate COVID cases within a business?

A: Yes. According to the rule when two or more suspected cases of COVID-19 occur in any business, organization, institution, facility, school or daycare the business owner, or the person in charge of the establishment shall cooperate with public health authorities in the investigation of cases, suspect cases, outbreaks and suspect outbreaks.

Q: Can the local health department or the Illinois Department of Public Health close a business if COVID cases occur on the premise?

A: Yes. The Department or a certified local health department may order the closure of a business.

Q: How long may a local health department or the Illinois Department of Public Health close a business?

A: Businesses could be forced to close for 48 hours unless exigent circumstances exist.

The Department or certified local health department SHALL within 48 hours after issuing the order, obtain:

  1. The consent of the person or owner; OR
  2. File a petition requesting a court order authorizing a closure.

If a local health department or the Department DOES NOT get the consent of the business, they must obtain a court order within 48 hours authorizing the involuntary closure of business that shall specify the following:

  1. The identity of all persons or groups subject to isolation or quarantine, if known;
  2. The premises subject to closure;
  3. The reason for the order for closure, including the suspected dangerously contagious or infectious disease if known;
  4. The date and time at which closure will commence;
  5. The anticipated duration of closure based on the suspected dangerously contagious or infectious disease, if known;
  6. The measures taken by the Department or the certified local health department to seek voluntary compliance or the basis on which the Department or the certified local health department determined that seeking voluntary compliance would create a risk of serious harm;
  7. The medical basis on which closure is justified, including but not limited to:
    • clinical manifestations;
    • physical examination;
    • laboratory tests, diagnostic tests or other medical tests;
    • epidemiologic information; or
    • other evidence of exposure or infection available to the Department or certified local health department at the time.

The petition shall be accompanied by the declaration of the Department or the certified local health department attesting to the facts asserted in the petition, together with any further information that may be relevant and material to the court’s consideration.

When exigent circumstances exist that cause the court system to be unavailable or that make it impossible to obtain consent or file a petition within 48 hours after issuance of an immediate order, the Department or certified local health department must obtain consent or file a petition requesting a court order as soon as reasonably possible.

Q: How many people can be gathered together in a manufacturing facility or office?

A: Illinois guidelines limits the number of people who may gather together at 50 people (or gatherings of 50 percent or more of a building’s maximum occupancy as determined by the local authority). Group gatherings need to be appropriately spaced.  This does not apply to workers on a manufacturing floor – there are no limits or occupancy rates for manufacturers.

Manufacturers are allowed to operate under the Governor’s Executive Order without an occupancy limit so this will generally not impact manufacturing operations but companies may not have group gatherings in excess of 50 individuals.