Employment

Nonprofit Holiday Highlights

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The year 2021 is quickly winding up, and 2022 is just across the horizon! Our law firm’s attorneys and paralegals deeply value the honor and opportunity to assist so many amazing nonprofit organizations and their incredible leaders, and to help advance their compelling and worthwhile missions. Thank you for this opportunity to serve as trusted legal advisors providing client-focused solutions, creative approaches to advance clients’ interests, and vibrant community engagement to help the nonprofit sector flourish. As a parting gift for this year, we’d like to share some holiday cheer – and what better way than through providing links to some key W&O blog articles across our nonprofit practice groups? We hope the W&O blog will continue to be a valuable resource for you!

Annual Anti-Harassment Training - Good Idea!

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With the year’s end fast approaching, now is a good time to reflect on many things – and what better than nonprofit legal compliance and related best practices? Of course! One key area is annual anti-harassment training, which is legally required for Illinois employers with 15 or more employees and recommended otherwise for optimal work conditions and risk minimization. 

Employer Alert: Illinois "Secure Choice” Mandatory Retirement Program Expands

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Does your nonprofit offer a retirement plan? In Illinois, the “Secure Choice Saving Program Act” requires larger employers to participate in a state-sponsored retirement program, but not if they offer their own retirement plans. The Act thus essentially motivates employers to offer retirement programs benefits, as many do. Since retirement plan benefits may carry substantial administrative expenses, the tendency is for only larger employers to offer them. Smaller employers may or may not provide retirement benefits, such as 403(b) plans for religious organizations and other Section 501(c)(3) organizations. The Act’s reach recently expanded to cover smaller employers, but thankfully with similar exclusions.

Update on Vaccine Mandate Litigation: Keep Watching...

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Is your nonprofit subject to a COVID vaccine requirement for its employees? In the last few months, such “mandates” have been issued for “large” employers (i.e., with at least 100 employees), federal contractors, federal employees, and medical workers. Correspondingly, a flurry of litigation has erupted, with dozens of states, businesses, religious organizations, and other nonprofits challenging such mandates on a plethora of constitutional, procedural, and other legal grounds. We reported recently on OSHA’s large employer mandate, and now we provide an update based on a federal court ruling and other important developments. – with implications for the OSHA mandate as well as similar employment directives. Key takeaway: watch closely for new legal developments!

OSHA's Vaccine Mandate for Large Employers: What to Do Now?

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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an “emergency temporary standard” (ETS) to reduce the risk of COVID-19 (Covid) transmission in the workplace and to protect unvaccinated workers from contracting the virus at work (Vaccine ETS). This Vaccine ETS applies nationwide to employers with 100 or more employees. Under the Vaccine ETS, employers must develop, implement, and enforce a mandatory Covid vaccine policy and determine vaccination status of employees within 30 days, then continue with enforcement measures within 60 days.

EEOC and Illinois Updates: COVID-Related Religious Exemptions

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In COVID time, the world continues to spin at a lightning-fast pace. Workers across the country are increasingly facing employers’ demands to get a COVID shot or to lose their jobs. A host of issues accompanies such requirement - public policy, legal, moral, religious, health, and political – and such issues can be highly divisive. On the religious aspects, two important developments occurred this week. First, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance addressing key aspects of religious exemptions. Second, with respect to Illinois workplaces, the Illinois state legislature moved swiftly to sharply curtail religious right of conscience protections – with the Governor’s expected approval to follow.

Conscientious Objections to COVID-19 Vaccine Mandates: Rights and Responsibilities

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COVID-19 vaccine mandates continue expanding, including President Biden’s recent announcement to require all employers with at least 100 employees to likewise impose such requirements. Meanwhile, increasing voices are expressing concerns and are invoking religious, medical, and other objections to such blanket mandates. Are such objections legally valid? Should they, or must they, therefore be honored as exemptions to vaccine mandates? What about COVID-19 testing, and masking too?

Demkovich: The Ministerial Exception Bars Harassment Claims Too

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“The First Amendment ministerial exception protects a religious organization's employment relationship with its ministers, from hiring to firing and the supervising in between.”

This summer, with the foregoing declaration, the en banc Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) dismissed a minister’s hostile work environment claim against his church employer and significantly clarified and strengthened religious institutions’ rights pertaining to their employment of ministers. The Court’s decision in Demkovich v. St. Andrew the Apostle Parish, Calumet City, overturned a smaller panel of the Circuit Court holding that the “ministerial exception” was not applicable and therefore that ministerial employees could pursue hostile work environment claims.

As a result of this decision, churches and other worshipping bodies within the Seventh Circuit’s jurisdiction (and perhaps beyond), should enjoy legal protection from a wider range of ministerial employment-related claims as a result of the decision. Such worshipping bodies may continue to lean into their sincerely held religious beliefs as a strong basis for their important employment-related decisions. But this decision intensifies a split among the federal courts of appeals, which may lead to a U.S. Supreme Court ruling with further clarification. The following paragraphs provide some background to the decision, analyze the court’s reasoning, and discuss implications for religious employers and further court proceedings.

Employment and COVID-19 Shots: Between a Rock and a Hard Place?

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May employers legally require COVID-19 shots for all employees? According to updated guidance issued by the Equal Employment Opportunity Commission (“EEOC”), the answer is yes: employers may legally require all employees physically entering the workplace to be vaccinated for COVID-19. On the other hand, the Biden administration just directed federal agencies to neither mandate shots nor require related disclosures from federal employees. And, as the New York Times recently reported, some states are pushing back on vaccination mandates.

Of Safety and Second Chances: Applying Illinois' Amended "Ban-the-Box" Law to Child Safety Screening

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Is the Illinois’ Employee Background Fairness Act a game-changer for nonprofits’ child safety screening? This new law, passed earlier in 2021, makes it a civil rights violation for employers to reject applicants or otherwise take adverse action against employees based on their criminal convictions. But thankfully, and sensibly, nonprofits that provide children’s programs, such as schools, sports activities, and childcare services, are fully able to consider individuals’ criminal records in assessing their suitability for working with children. Organizational leaders should now do so more thoughtfully with respect to their employees, and with continued complete discretion for their volunteer workers.

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