• Illinois Employees Hit the Sick Leave Trifecta: Important Changes to Take Effect in 2017
  • October 27, 2016 | Authors: Norma Manjarrez; Kelsey J. Schmidt
  • Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Chicago Office
  • Three recently enacted laws expanding sick leave benefits within the state of Illinois will soon impact employers with operations in Illinois: the Illinois Employee Sick Leave Act (effective in January of 2017); the Chicago Paid Sick Leave Ordinance (effective in July of 2017); and the Cook County Earned Paid Sick Leave Ordinance (effective in July of 2017). Below is a summary of each law.

    Illinois Employee Sick Leave Act

    On August 19, 2016, Governor Rauner approved the Illinois Employee Sick Leave Act, which will take effect on January 1, 2017. “Employee Sick Leave Act” is a bit of a misnomer since the statute does not require employers to provide sick leave benefits to their employees. Instead, the law allows employees to use personal sick leave benefits that their employers already provide for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. The term “personal sick leave benefits” includes time accrued and available for absences due to personal illness, injury, or medical appointments, but not those absences for which compensation is provided through an employer’s plan.

    The Illinois act does not require employers to adopt sick leave policies if they do not already provide personal sick leave benefits. The act allows Illinois employers to limit the amount of personal sick leave benefits available for the care of family members to “not less than the personal sick leave that would be accrued during 6 months” at the employee’s personal sick leave accrual rate. The act does not expand benefits provided under the Family and Medical Leave Act (FMLA).

    Illinois employers that have policies that otherwise provide for sick leave as required by the act do not have to modify their policies to expressly provide sick leave for family care. For example, a paid time off (PTO) policy that allows employees to take time off for family care would not have to be modified. However, the act is unclear as to whether it requires parties to a collective bargaining agreement with a personal sick leave policy to bargain for an immediate modification of the agreement to make it complaint with the act (unlike the Chicago Paid Sick Leave Ordinance, discussed below, which explicitly states that it does not change the terms of a labor agreement in force on its effective date).

    The Illinois act also prohibits retaliation against an employee who exercises his or her rights under the act.

    The text of the Illinois Employee Sick Leave Act can be found on the Illinois General Assembly’s website.

    Chicago Paid Sick Leave Ordinance

    On June 22, 2016, the Chicago City Council unanimously passed an ordinance amending the Municipal Code of Chicago by mandating paid sick leave for employees working within Chicago. The Chicago ordinance will take effect on July 1, 2017.

    The Chicago ordinance covers all employers that maintain a business facility within the geographic boundaries of Chicago and/or are subject to one or more of the city’s licensing requirements. Covered employees are employees who work at least 80 hours in any 120-day period. Employees working in the construction industry who are covered by a collective bargaining agreement are excluded from coverage.

    Beginning on the first calendar day after his or her start of employment or on July 1, 2017, whichever is later, a covered employee may accrue up to 40 hours of paid sick leave over the course of one year at a rate of one hour of paid sick leave for every 40 hours worked. Employees will also have the ability to carry over half of their unused paid sick leave in an amount not to exceed 20 hours. Exempt employees are assumed to work 40 hours a week, but if their normal workweek is less than 40 hours, then they will accrue sick leave based upon their normal workweek. The accrual of paid sick leave must be calculated in one-hour increments; fractional accruals are impermissible.

    Employers may bank paid sick leave for up to 180 days after the covered employee starts his or her employment but must allow for the use of accrued paid sick leave thereafter. Employers are not required to pay the monetary equivalent of unused paid sick leave to employees upon separation. An employer, thus, could hold accrued paid sick leave during a covered employee’s probationary period (assuming it is a period less than 180 days) and, if the employee were released at the end of his or her probationary period (or at any time in the first 180 days of employment), the employer would not be required to pay any accrued unused paid sick leave in the employee’s final compensation.

    Where the employer has a policy that grants employees paid time off in an amount and a manner that complies with the Chicago ordinance, such as a PTO policy, the Chicago ordinance does not require the employer to provide additional paid sick leave. Employers may want to review their existing paid leave policies to ensure that the Chicago Ordinance’s five-day annual sick leave entitlement is accommodated.

    Under the Chicago ordinance, paid sick leave may be used for the following:
    1. the illness or injury of a covered employee;
    2. the medical care, treatment, diagnosis, or preventative medical care of a covered employee;
    3. the illness or injury of a covered employee’s family member or to care for a family member receiving medical care, treatment, diagnosis, or preventative medical care;
    4. if a covered employee or his or her family member is a victim of domestic violence or a sex offense; or
    5. the covered employee’s place of business is closed due to a public health emergency, or he or she needs to care for a child whose school or place of care is closed due to a public health emergency.
    Employers that are subject to the Family and Medical Leave Act are required to provide covered employees with the ability to carry over up to 40 hours of unused paid sick leave for use as FMLA leave. If, however, a covered employee carries over 40 hours of FMLA leave and uses it, he or she may not use more than an additional 20 hours of sick leave during the course of that year.

    Employers may require up to seven days’ notice when the need for paid sick leave is reasonably foreseeable (e.g., a prescheduled medical appointment or a court date in a domestic violence case). Where the need for paid sick leave is not reasonably foreseeable, an employer may require the covered employee to give notice as soon as practicable via phone, email, or text message. In the event the covered employee is absent for three or more consecutive work days, employers may require documentation to support the covered employee’s request for paid sick leave (e.g., documentation signed by a licensed health care provider, a police report, or a court document).

    Employers are required to post a notice on the premises of each Chicago location as well as provide a notice informing covered employees of their rights under the Chicago Minimum Wage and Paid Sick Leave Ordinance with their first paycheck after the effective date of the Chicago ordinance. Although not yet available, the Chicago ordinance indicates that a posting and notice that satisfies the requirements of the Chicago ordinance will be made available by the Chicago Department of Business Affairs and Consumer Protection.

    A violation of the Chicago ordinance can lead to a civil action for damages equal to three times the full amount of any unpaid sick time denied or lost as a result of the violation, plus interest and costs and attorneys’ fees.

    The Chicago ordinance prohibits retaliation against an employee who exercises his or her rights under the ordinance.

    The City of Chicago paid sick leave ordinance can be found on the City of Chicago’s website.

    Cook County Earned Paid Sick Leave Ordinance

    Following the lead of the City of Chicago, on October 5, 2016, the Cook County Board of Commissioners passed an ordinance mandating paid sick leave for employees working in Cook County. The county ordinance similarly will take effect on July 1, 2017.

    The county ordinance will apply to private sector employees throughout the county, except where a home rule municipality has enacted its own law, which so far has only happened in the City of Chicago. The county’s paid sick leave ordinance extends the reach of the City of Chicago’s ordinance, covering employees who, in any particular two-week period, perform at least two hours of work for an employer while physically present within the geographic boundaries of Cook County. The county’s ordinance allows eligibility for part-time workers and will cover 441,000 county workers outside of Chicago, making Cook County the largest county to mandate paid sick leave. Employees working in the construction industry who are covered by a collective bargaining agreement are excluded from coverage.

    The county’s ordinance largely follows that of the City of Chicago, allowing employees to earn one hour of paid sick leave for every 40 hours worked and accrue a maximum of 40 hours (or 5 days) of paid sick leave per year. The county ordinance applies to employers of all sizes and to any employee who has worked at least 80 hours within any 120-day period for the same employer. Employees may use paid sick leave for the same reasons as those enumerated in the City of Chicago ordinance, and employees must also adhere to the same notice requirements before utilizing the paid sick leave.

    The Cook County ordinance prohibits retaliation against an employee who exercises his or her rights under the ordinance.

    The Cook County ordinance can be found on the Cook County Board of Commissioners website.

    Breaking It Down

    For ease of reference, the following chart provides quick information on these new sick leave laws.

    Sick Leave Act/Ordinance

    State of Illinois

    City of Chicago

    Cook County

    Effective Date

    January 1, 2017

    July 1, 2017

    July 1, 2017

    Covered Employees

    Employees of an employer that provides personal sick leave benefits, regardless of the employer’s size

    Employees who work at least 80 hours in a 120-day period, regardless of the employer’s size

    Employees who work at least 80 hours in a 120-day period, regardless of the employer’s size

    Total Potential Accrual of Hours per Year

    N/A

    40

    40

    Accrual Rate

    N/A

    1 hour for every 40 hours worked

    1 hour for every 40 hours worked

    Allowed Carry Over

    N/A

    20

    20

    Allowed Carry Over for FMLA

    N/A

    40

    40

    When Employee Can Begin to Use Accrued Sick Leave Time

    N/A

    180 days after start of employment

    180 days after start of employment

    Notice Requirements

    N/A

    May require up to 7 days’ notice if the need for leave is foreseeable

    May require up to 7 days’ notice if the need for leave is foreseeable

    Damages

    N/A

    3x amount of any unpaid sick time plus interest, costs, and attorneys’ fees

    3x amount of any unpaid sick time plus interest, costs, and attorneys’ fees

    Practical Tips for Employers

    In light of these new legislative developments, Illinois employers may want to evaluate their current sick time, vacation, paid time off, and FMLA policies and practices to ensure that they are compliant with federal, Illinois, and local law.

    Additionally, because the language in the Chicago and Cook County ordinances are ambiguous as to whether policies that provide for the accrual of paid time off and parallel paid sick leave requirements under the ordinances (like paid vacation policies) will pass muster, Chicago and Cook County employers may want to convert their vacation policies to PTO policies that are consistent with the applicable ordinance or ordinances.

    For employers with labor agreements in effect on July 1, 2017, neither the Chicago nor the Cook County ordinance will affect those already agreed upon terms. Labor agreements negotiated after July 1, 2017, may waive minimum wage requirements under these ordinances, but only if the waiver is clear and unambiguous.