May 15, 2020
Commercial Litigation Law Alert
Author(s): Seth A. Horvath
Last week the State of Illinois rolled out its five-phase plan to reopen in the wake of two months of coronavirus (COVID-19) restrictions. Formally titled Restore Illinois: A Public Health Approach to Safely Reopen Our State,  the plan allows different geographic regions to move from one phase to the next based on data-driven benchmarks related to COVID-19 infection rates and treatment capabilities. Governor J.B. Pritzker currently places the state as a whole in Phase 2 of the plan, known as “Flattening.” By month’s end, most of the state is expected to move into Phase 3, known as “Recovery.” This is an overview.
Phase 1 – Rapid Spread: Phase 1 of the plan was underway before the written version was released to the public. It involves immediate measures to diminish the rapid spread of COVID-19. Each region of the state has experienced this phase once already and could return to it if mitigation efforts are unsuccessful.
In Phase 1, essential gatherings—such as religious services—of ten or fewer people are allowed. But nonessential gatherings of any size are prohibited, nonessential businesses are closed, and nonessential travel is discouraged.
Advancing to the next phase depends on slowing the growth of new COVID-19 cases, ensuring adequate “surge capacity” at hospitals, and developing the ability to perform 10,000 tests per day statewide.
Phase 2 – Flattening: In Phase 2 of the plan, the rate of infection begins to slow and stabilize, moving toward a flat, and even downward, trajectory. To varying degrees, this is Illinois’s current phase throughout the state.
The same restrictions on gatherings and travel from Phase 1 continue to apply during Phase 2. But nonessential retail stores are allowed to open for curbside pickup and delivery.
Advancing to the next phase depends on each region’s “positivity rate”—a measure of the coronavirus test results that come back positive—and its “hospital surge capacity”—a measure of the number of hospital beds and ventilators available for use.
Phase 3 – Recovery: In Phase 3, the rate of infection is stable or declining. Gatherings of ten people or fewer are allowed. Travel may occur within regulatory guidelines. And manufacturing facilities, offices, retail establishments, barbershops, and salons can reopen to the public, with capacity limits and other safety precautions in effect.
Advancing to the next phase depends on the same metrics applicable to Phase 2: positivity rates and surge capacities.
Phase 4 – Revitalization: Phase 4 of the plan is characterized by a continued decline in the rate of new COVID-19 cases. Gatherings of fifty people or fewer are allowed; travel may continue to occur within regulatory guidelines; restaurants and bars may reopen. Additionally, childcare facilities and schools may reopen under guidance from the Illinois Department of Public Health (IDPH).
Advancing to the next phase depends on a vaccine, effective and widely available treatment, and the elimination of new COVID-19 cases over a sustained period of time through “herd immunity” or other factors.
Phase 5 – Illinois Restored: In Phase 5, testing, tracing, and treatment are widely available throughout the state. Conventions, festivals, and large events are permitted. Businesses, schools, and recreational facilities are fully operational. Subject to new safety guidance and procedures, all sectors of the economy are reopened.
There are and will continue to be many questions about the plan. Here are a few immediate considerations for Illinois businesses.
Is the plan “the law”?
By its own terms, the plan is “an initial framework” for reopening the state that is likely to be updated “as research and science develop.” The plan has not yet been incorporated into an executive order or a set of administrative regulations. The restrictions it imposes are based on the governor’s previous disaster proclamations and executive orders, which contain stay-at-home provisions and limit the functions of nonessential employees and businesses.
Could pending litigation over the stay-at-home order affect the plan?
The plan depends, at least in part, on the stay-at-home order’s validity. And litigation challenging the order continues to proliferate.
In state court, two legislators have filed lawsuits seeking to enjoin the stay-at-home order on state statutory and constitutional grounds. In the first lawsuit, a temporary restraining order (TRO) was entered and then voluntarily vacated so the plaintiff could amend his complaint, which has now been refiled. In the second lawsuit,  the plaintiff’s motion for a TRO was scheduled to be heard this week. The Illinois Supreme Court declined to weigh in on the first lawsuit on an expedited basis. But this does not mean the lawsuit, or one asserting similar claims, will not ultimately reach the court.
Other state-court lawsuits have been filed by small-business owners  and by a rideshare driver. The court in the rideshare lawsuit recently denied a request to prohibit the state from requiring rideshare drivers and their passengers to wear protective masks inside rideshare vehicles. In its ruling, the court upheld the governor’s authority to continue using his emergency powers to address the COVID-19 pandemic.
At the federal level, two churches have challenged the stay-at-home order on federal and state statutory and constitutional grounds. Preliminary injunctive relief was denied in each case. Both cases are on appeal to the United States Court of Appeals for the Seventh Circuit. In the first case, the court upheld the governor’s ongoing use of his emergency powers to address COVID-19. The ruling in the second case was based solely on federal constitutional grounds.
This is an evolving situation. But for now, there’s been no statewide legal ruling prohibiting enforcement of the plan to reopen.
Who’s in charge of monitoring progress and compliance?
The IDPH is responsible for tracking medical data from local health departments and regional health-care councils to determine when a region is ready to move from one phase of the plan to the next. In fact, the four “health regions” created by the plan are built around the IDPH’s eleven existing regions for overseeing emergency medical services.
Although not explicitly addressed by the plan, enforcement falls within the purview of various state agencies mentioned in the governor’s COVID-19 executive orders, including the IDPH, the Illinois State Police (ISP), the Office of the Illinois Fire Marshal, and the Illinois Liquor Control Commission. The ISP has issued detailed COVID-19 enforcement guidance. 
What if a business has locations in multiple regions?
The plan does not address what happens if a business has locations in multiple regions of the state. It seems evident from the plan’s terms, though, that each location is subject to regional metrics and requirements. So if a business has physical locations or employees in multiple regions, then the plan’s effect on its operations must be monitored on a regional basis.
What if someone works in one region and lives in another?
The plan does not address movement between regions. Each of the state’s four regions—Northeast, North–Central, Central, and Southern—is fairly large. As a result, this concern is more acute in some areas than others, such as those straddling well-populated counties that fall on different sides of a regional boundary. Circumstances could arise, for example, in which an employee lives in a region that remains subject to a ten-person limit on gatherings but works in one subject to a fifty-person limit. Employers will have to plan accordingly.
What if someone lives in Illinois but works in a different state?
The plan does not address movement between states. Each of Illinois’s sister states has different stay-at-home restrictions in place. In Wisconsin, for instance, the state supreme court just struck down the executive branch’s stay-at-home order,  theoretically allowing Illinoisans who work in Wisconsin to return to their jobs, as long as this does not violate Illinois’s stay-at-home order. Again, employers will have to plan accordingly.
Nixon Peabody attorneys have regularly been advising clients on states’ plans to reopen. They are available to assist businesses in each phase, and in every region, in Illinois and elsewhere to help them return to work safely and efficiently.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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