The Illinois Employment Law Guide

Illinois requires that employers conduct background checks on the following types of employees: Healthcare personnel, park district personnel, armed security guards, private detectives, private security contractors, private alarm contractors, locksmiths, firefighters, if requested by the chief or board of trustees, peace officers, childcare personnel, school bus drivers, public school personnel and state-recognized private school personnel, state mental health facility personnel, those who provide state-approved early intervention services to children, carnival personnel,  and secure residential youth care facility personnel

Employers may not obtain or use credit checks on applicants or employees unless either the employer or the applicant or employee falls under an exception, listed below.

The following employers may obtain credit checks on applicants or employees: financial institutions, insurance businesses, law enforcement, and debt collectors.

Employers with 15 or more employees are prohibited from inquiring about, considering, or requiring disclosure of criminal records or histories of applicants prior to determining that they are qualified for the position and offering an interview. If interviews will not be conducted, the inquiry may only be made after a conditional offer of employment has been extended.

Employers must accommodate off-duty medical use of marijuana, unless doing so would violate federal law or cause the employer to lose federal money or a federal license. Recreational use is legal, but employers may still enforce their drug policies prohibiting cannabis, with a couple caveats.

First, to test for reasonable suspicion an employer must have a good faith belief that the employee manifests specific, articulable symptoms while working that affect their job performance, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment of machinery.

Second, if an employer wants to discipline the employee for on-duty impairment, they must provide the employee a reasonable opportunity to contest the employer’s conclusion. Technically the recreational use law includes a non-discrimination provision for employment, but a last-minute amendment clarified that employers could still have a policy against all use (a no-tolerance testing policy, essentially) if the policy was reasonable and communicated to employees and applicants.

COBRA is a federal law that allows many employees to continue their health insurance benefits after their employment ends. Because federal COBRA only applies to employers that have 20 or more employees, many states have adopted their own versions of the law, which are known as “mini-COBRAs.” Illinois’s mini-COBRA allows employees to continue their coverage for up to 12 months. We recommend that employers inform an employee of their COBRA rights as soon as a triggering event occurs, but no later than 10 days after the occurrence. Employees must be notified by mail or in person.

Employers in Illinois may not do any of the following:Have a policy that prevents an employee from reporting what they reasonably believe to be a violation of state or federal law to a governmental or law enforcement agency, retaliate against an employee for reporting what they reasonably believe to be a violation of state or federal law to a governmental or law enforcement agency, retaliate against an employee for participate in a proceeding, including before a legislative committee, regarding an alleged violation of state or federal law, retaliate against an employee who refuses to participate in any violation of state or federal law, or retaliate against an employee who assists in proceedings or otherwise opposes fraudulent claims made to the State or Illinois or to the Illinois National Guard.

In addition, employers that are nursing facilities may not retaliate against an employee because they report or threaten to report to their supervisor or to a public body what they reasonably believe to be a violation of a law.

Employers must provide reasonable accommodations to pregnant employees, such as more frequent bathroom breaks, assistance with manual labor, and/or modifications to work duties or schedule upon request. Employers must post notice about these requirements in a conspicuous place and include the same information in employee handbooks.

Employers may not discipline an employee solely for being a qualified medical marijuana patient unless required by federal law in order to maintain funding. This prohibition does not need to affect an employer’s drug use policies.

Each employee in Illinois must complete, at least annually, a sexual harassment prevention training program. New employees must complete their initial training within 30 days of hire. The training must include explanations of sexual harassment under Illinois law, a summary of applicable laws on sexual harassment and remedies available, and a summary of employers’ obligations to prevent, investigate, and remediate incidents of workplace sexual harassment.

The Illinois Biometric Privacy Act requires employer to follow certain steps when collecting biometric identifiers for any purpose, which you can find here.

It is unlawful for Illinois employers to ask, require, or coerce applicants or employees to disclose or to provide passwords or other means of authentication that provides access to a personal social media account or demand access to an employee or applicant’s online personal account.

In addition, it is illegal for an employer to compel an employee or applicant for employment to access their personal online account in the employer’s presence or compel an employee or applicant for employment to add the employer or an employment agency to the employee’s or applicant’s list of contacts associated with a social media website.

If employers need to conduct an investigation, they may require an employee to share specific content that has been reported to the employer and that is necessary for the employer to make a factual determination about the matter under investigation.

If a employer inadvertently receives the username, password, or any other information that would enable the employer to gain access to the employee’s or potential employee’s personal online account, the employer is not liable for having that information, unless the employer uses that information or provides it to a third party for use.

Employers are not prohibited from accessing social media pages that are visible to the public.

Illinois is an “all parties” consent state, meaning every person on a phone call must be aware that they are being monitored or recorded and have consented by placing or continuing the phone call. This means employers may monitor or record phone calls between their own employees only if each employee has been given notice that phone calls may be monitored or recorded. However, phone calls placed by employees to outside parties may not be monitored or recorded unless the outside party has also consented. There are both criminal and civil penalties for violation of this law.

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