New Illinois Laws to Know In 2021

After a tumultuous 2020, prepare yourself for more change. Here’s a summary of new Illinois laws coming in 2021 and laws you might have missed that became effective this year.

Like many state legislatures across the country, Illinois’ spring legislative session was cut short due to the COVID-19 State of Emergency. The General Assembly’s fall veto session was also canceled in the interest of protecting the safety of our state lawmakers and staff.  

Despite these limitations, Illinois’ executive and legislative branches accomplished a great deal in the time they had. They expanded access to telehealth during the pandemic, established new employer responsibilities and employee rights regarding sexual harassment, loosened licensing requirements to secure a sufficient response to the pandemic, and more.

To stay compliant in 2021, learn about some of the new laws that will affect independent healthcare practices and other small businesses.

Minimum Wage

One of the momentous legislative events in 2020 was the enactment of The Lifting Up Illinois Working Families Act (Lightford/Guzzardi. This law established a minimum wage increase to $15 over six years. Starting January 1, 2021, the minimum wage will be $11.00 per hour. For employees under 18 years old who have not worked more than 650 hours for the employer during any calendar year, the minimum wage will be $8.50 per hour starting January 1, 2021, and through December 31, 2021.

Non-discrimination Requirements

Illinoisans now enjoy new protections from sexual harassment in the workplace under the Workplace Transparency Act. Illinois employers must now comply with new education requirements.

In January of this year, employers and employees began compliance with the Workplace Transparency Act, which aims to ensure “all workplaces are free of unlawful discrimination and harassment.” SB 75 (Bush/Williams) prohibits an employer from limiting an employee, via contract, agreement, or otherwise, from reporting allegations of unlawful conduct to federal, state, or local officials.¹ 

The act forbids unilateral conditions of employment, which includes any contract, agreement, clause, covenant, or waiver that an employer requires an employee or prospective employee to accept as a non-negotiable and binding in order to obtain or retain employment.² 

The law expands the definition of unlawful discrimination to include such discrimination against a person because of their or actual or perceived membership in a protected class. It makes harassment against contract employees illegal.  Before the bill, these workers did not have legal protection against sexual harassment.

The law also:

• Permits unpaid leave for victims of gender-related violence
• Places restrictions on the representation of victims and alleged harassers in a disciplinary proceeding
• Directs hotels and casinos to provide panic buttons in isolated workspaces
• Creates a new sexual harassment training program developed by the Illinois Department of Human Rights
• Establishes statutory rights for victims of sexual harassment, discrimination, or other harassment during investigations by the Executive and Legislative Inspectors General 
• Requires state officials, state employees, and lobbyists to complete harassment and discrimination prevention training on an annual basis. This requirement is in addition to sexual harassment
• Directs local governments to conduct an independent investigation into allegations of sexual harassment against its elected officials

HB 2847 (Conroy/Morrison) prohibits employers from retaliating against an employee requesting or obtaining a leave of absence to donate blood, an organ, or bone marrow.

Sexual Harassment Training Requirements 

Beginning in 2020, SB 75 also requires employees to complete at least annually a harassment and discrimination prevention training program.³ Employees who fill a vacancy in an elective or appointed position must complete this initial harassment and discrimination prevention training within 30 days of employment. The training must include

• the definition and a description of sexual harassment, unlawful discrimination, and harassment, including examples of each
• details on how an individual can report an allegation of sexual harassment, unlawful discrimination, or harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Department of Human rights, among others;
• the definition and description of retaliation for reporting sexual harassment, unlawful discrimination, or harassment allegations utilizing examples, including the availability of whistleblower protections; and
• the consequences of a violation of the prohibition on sexual harassment, unlawful discrimination, and harassment and the consequences for knowingly making a false report.

Protection For First Responders During COVID-19

HB 2455 (Hoffman/Holmes) amends the Workers’ Occupational Diseases Act for claims by first responders related to COVID-19 between March 9 and December 31, 2020. It establishes a rebuttable presumption that an employee who contracts COVID-19 did so during the employee’s employment and that the injury or occupational disease must be presumed causally connected to the hazards or exposures of the job. 

The protections cover first responders and front-line workers, including all individuals employed as: 

• police
• fire personnel
• EMTs or paramedics
• all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers
• corrections officers
• staff members of essential businesses and operations, as defined by EO 2020-10, who are required to encounter members of the general public or work in employment locations of more than 15 employees 

The bill also amends the Illinois Pension Code to create a rebuttable presumption that police and firefighters who died as a result of exposure to and contraction of COVID-19 between March 9 and December 31, 2020, were fatally injured in the line of duty. To enjoy the presumption, a confirmed medical diagnosis or a positive lab test for COVID-19 or COVID-19 antibodies must be produced.

The bill became effective on June 5, 2020. 

Protection For Businesses During COVID-19

In a year when workers faced resistance—including violence—from patrons who refused to wear masks or observe occupancy limits, Illinois saw enhanced protections for business owners trying to enforce COVID-19 laws. 

SB 471 (Lightford/Hoffman) amends Illinois’ definition of aggravated battery. Now a person commits aggravated battery when, in committing a battery (other than by a firearm), he or she knows the individual battered to be a merchant 1) while performing his or her duties including but not limited to relaying directions for healthcare or safety from his or her supervisor or employer or relaying health or safety guidelines, recommendations, regulations, or rules from a federal, state, or local public health agency; and 2) during a disaster declared by the governor or a state of emergency declared by the mayor of the merchant’s municipality, due to a public health emergency and for a period of 6 months after such declaration.

This bill became effective on August 7, 2020.

Options For Health Insurance Coverage 

Illinoisans can expect to see a report from the Department of Healthcare and Family Services (HSF) by Feb 28, 2021, regarding options for health insurance coverage. Under SB 1864 (Hunter/Harris), HFS must submit to the Illinois General Assembly and Governor a report concerning the design, costs, benefits, and implementation of State options in increasing access to affordable health care coverage that leverage existing State infrastructure. 

Protection of Survivors of Sexual Assault

SB 557 (Bush/Cassidy) amends the Sexual Assault Survivors Emergency Treatment Act. It permits that, during the duration of a disaster as declared by the Governor, an approved federally qualified health center may provide medical forensic services to sexual assault survivors who are 13 years old or older and present for medical forensic services with injuries or trauma resulting from a sexual assault.

Senate Bill 557 allows approved federally qualified health centers to perform rape kit examinations and collection during public health emergencies like COVID-19.  (Press Releases (senatormelindabush.com)

New Rights for Pregnant Mothers

HB 2 (Flowers/Collins) established new rights for pregnant and postpartum women in the Medical Patient Rights Act. These include the right to:

• receive health care before, during, and after pregnancy and childbirth
• receive care for her and her infant that is consistent with generally accepted medical standards
• choose a certified nurse-midwife or physician as her maternity care professional
• choose her birth setting from the full range of birthing options available in her community.
• leave her maternity care professional and select another if she becomes dissatisfied with her care, except as otherwise provided by law
• receive information about the names of those health care professionals involved in her care
• enjoy privacy and confidentiality of records, except as provided by law.
• receive information concerning her condition and proposed treatment, including methods of relieving pain
• accept or refuse any treatment, to the extent medically possible.
• be informed if her caregivers wish to enroll her or her infant in a research study
• access her medical records
• receive information in a language in which she can communicate, in accordance with federal law
• receive emotional and physical support during labor and birth
• enjoy freedom of movement during labor and to give birth in the position of her choice, within generally accepted medical standards
• have contact with her newborn, except where necessary care must be provided to the mother or infant
• receive information about breastfeeding
• decide collaboratively with caregivers when she and her baby will leave the birth site for home, based on their conditions and circumstances. 
• be treated with respect at all times before, during, and after pregnancy by health care  professionals
• examine and receive a reasonable explanation of her total bill for services rendered by her maternity care professional or health care provider, regardless of the source of payment. This includes itemized charges for specific services received. Each maternity care professional or health care provider shall be responsible only for a reasonable explanation of those specific services provided by the maternity care professional or health care provider. 

Kidney Disease Research

Illinoisans can expect a report on kidney disease by the end of the year. By Dec 31, 2021, the Kidney Disease Prevention and Education Task Force must submit its final report. (SB 1864)

Intellectual And Developmental Disabilities

Illinoisans can expect rules from the Department of Human Services (DHS) regarding remote monitoring for individuals with developmental and intellectual disabilities. HFS and DHS must submit a state plan amendment no later than Jan 1, 2021, to federal CMS to allow for remote monitoring and support services as a waiver-reimbursable service for persons with ID and DD. DHS must adopt rules to allow remote monitoring and support services at community-integrated living arrangements no later than July 1, 2021.

Executive Orders

A bulk of activity in response to COVID-19 happened in the Executive branch. Governor Pritzker issued numerous Executive Orders responding to the pandemic. These orders aimed to continue the operation of the public sector, grant relief to the private sector, and a lot in between:

Enhanced Coverage For Telehealth. 

Under Executive Order 2020-09, the Governor requires health insurers regulated by the Department of Insurance to cover the costs of medically necessary, clinically appropriate telehealth services delivered by in-network providers. Insurers cannot subject a patient receiving these services to cost-sharing requirements such as copays, deductibles, and coinsurance. 

Providers who can deliver telehealth services subject to this order include in-network providers who are licensed, registered, certified, or otherwise authorized to practice in Illinois, including:

• physicians
• physician assistants
• optometrists
• advanced practice registered nurses
• clinical psychologists
• prescribing psychologists
• dentists, occupational therapists
• pharmacists
• physical therapists
• clinical social workers
• speech-language pathologists
• audiologists
• hearing instrument dispensers
• other mental health providers
• other providers of substance use disorder treatment

Insurers cannot institute duplicative or unwarranted utilization review requirements. Likewise, they can’t impose treatment limitations that are more stringent than if the provider delivered the care in person. Finally, insurers cannot institute prior authorization requirements for telehealth services delivered by in-network providers to treat COVID-19.

This executive order remains effective through January 9, 2021, pursuant to Executive Order 2020-74. 

Background Check for CNAs 

Executive Order 2020-12 suspends provisions of the Healthcare Worker Background Check that prohibit an individual from being hired to work as a certified nursing assistant (CNA) if they have been inactive in the Health Care Worker Registry as long as: 

1.  the inactive status was no more than five years
2. the CNA was in good standing at the time they became inactive
3. the CNA completes and submits any forms required by the Department of public health. 

This remains effective through January 9, 2021.

Hospital Licensure 

Executive Order 2020-26 directs the Illinois Department of Public Health (IDPH) to “exercise discretion” regarding enforcement of all provisions under the Hospital Licensing Act, Emergency Medical Services Systems Act, the Department of Public Health Powers and Duties Law, the Illinois Adverse Health Care Events Reporting Law, and corresponding regulations. 

The suspension of these provisions is in recognition of the need for Illinois hospitals and healthcare providers to make accommodations in response to the COVID-19 pandemic and to ensure patient safety.

Specifically, Section 2. During the duration of the Gubernatorial Disaster Proclamations, the following hospital licensing requirements of the Hospital Licensing Act, 210 ILCS 85/1 et seq., are suspended:

• 210 ILCS 85/6.09. Notice of discharge; aged patients and patients with disabilities on Medicare.
• 210 ILCS 85/6.09b. Patient notice of observation status.
• 210 ILCS 85/6.14g. Reports to the Department; opioid overdoses.
• 210 ILCS 85/6.22. Arrangement for transportation of patient by an ambulance service provider.
• 210 ILCS 85/10. Board creation; Department rules.
• 210 ILCS 85/10.8. Requirements for the employment of physicians.
• 210 ILCS 85/10.10. Nurse Staffing by Patient Acuity.
• 210 ILCS 85/11.8. Closed captioning required.

Importantly, the above requirements must remain consistent with all related federal laws and rules, including the HIPAA privacy rule and the Emergency Treatment & Labor Act (EMTALA), among others.

This remains effective through January 9, 2021.

Compassionate Use of Medical Cannabis

Those who benefit from medical cannabis can enjoy an extension for their medical cannabis license for those expiring between October 1, 2020, and April 30, 2021. 

Executive Order 2020-68 directs IDPH to grant one-year renewal or extension, as appropriate, for all valid registry identification cards for the Compassionate Use of Medical Cannabis Program that expire between October 1, 2020, and April 30, 2021.

This order remains in effect through January 9, 2021.

Pandemic or Epidemic Respiratory Disease – Emergency Provisions

Illinois also witnessed new rules by administrative agencies, the most significant of which was the Pandemic or Epidemic Respiratory Disease – Emergency Provisions.⁴ The emergency period for this rulemaking expires Dec 30, 2020, after which point the Department of Public Health shall either have adopted a proposed rule or the rule expires.

The emergency rules expanded the Department’s general supervisory jurisdiction to include addressing dangerously contagious or infectious disease outbreaks. The rulemaking required individuals who can medically tolerate face coverings to do so when unable to maintain a six-foot distance, whether in an indoor or outdoor space.

The rule also requires businesses to institute a face covering requirement for their customers and make reasonable efforts to comply with the requirement. “Reasonable efforts” would be assessed by such actions as

• posting signage requiring the wearing of face coverings on the premises
• providing face coverings to customers
• giving verbal warnings to customers
• requesting customers to leave if they do not wear a face covering 

The rule further instituted this face covering requirement for public and private schools serving pre-kindergarten through grade 12, as well as institutes of higher education, daycares, and group homes licensed by the Department of Child and Family Services. 

The rule further prohibits gatherings of more than 50 people—or those gatherings of 50% or more of a building’s maximum capacity—unless exempted by law or Executive Order. It directs public and private schools serving pre-kindergarten through 12^th grade to limit the number of people in one space to fifty or fewer.

Importantly for small businesses, no individual can be held responsible for compliance with this rule on behalf of a business, service, facility, or organization, even if the individual is an owner, officer, principal, or employee of that business. Instead, enforcement of the rule follows a strict step-by-step process:

1. First, a business open to the public must be given written notice of non-compliance.
2. After receiving this notice, the business must be given the opportunity to take prompt action to comply. The reasonableness for this time period will be assessed on a case by case basis, and consider whether the business activity is taking place indoors or outdoors, the public health risk, the number of individuals at risk of exposure to COVID-19, the size of the building and the crowd occupying the building.
3. If the business does not voluntarily comply, as determined by an enforcing entity such as a local police officer or local health official, the business could be issued a written order to disperse.
4. If the business does not comply with an order to disperse, it could be subject to a Class A misdemeanor.

Repeated violations following written notices of noncompliance or after receiving more than two orders to disperse could result in penalties. 

The enforcement of this rule varies across counties and depends on the directive given at the local level.

Conclusion

Without question, 2020’s legal environment demanded that healthcare professionals stay nimble and, most of all, attuned to state and federal requirements. We expect 2021 to follow the same path. If you have questions about what the new laws mean for your practice or business, please reach out to the attorneys at Jackson LLP so we can help you stay compliant in the coming year.

[1] P.A. 101-0221, Sec. 1-20.

[2] P.A. 101-0221, Sec. 1-15.

[3] 5 ILCS 430/5-10.5(a).

[4] 77 IAC 690.50; available at: 77-690RG-E.pdf (illinois.gov)

The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.