2017 Compliance Deadlines Approach for Illinois, Cook County, and Chicago Sick Leave Laws
Labor & Employment Alert 12/21/16 William A. Walden
With 2017 rapidly approaching, Illinois employers must revise sick leave policies to comply with new Chicago, Cook County and Illinois laws that go into effect as early as January 1, 2017. This article briefly summarizes and reconciles the three laws, so that you can begin to take action, to the extent you have not done so already.
Illinois Sick Leave Law (effective January 1, 2017)
The Illinois sick leave statute is the least burdensome of the three new sick leave laws. The statute does not compel businesses to adopt any new paid sick leave policies. Instead, the statute requires businesses to revise any existing policies (to the extent an employer has one) to permit caring for a family member as a permissible use of paid sick leave. For purposes of this law, "Family Member" is defined as: child, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, and step-parent. With regard to the amount of sick leave that must be granted to care for a family member, it must equal at least the amount of paid sick leave an employee can accrue and use for his or her own health condition in six months of employment. Employees without paid sick leave have no new compliance obligations under the Illinois statute.
Cook County and Chicago Sick Leave Ordinances (effective July 1, 2017)
Cook County and Chicago passed matching sick leave ordinances earlier this year. Both ordinances have effective dates of July 1, 2017 and substantially similar provisions, so we cover them jointly below. For reference, we have included a map delineating Cook County's municipal boundaries, which the county provides on its website.
Employees qualify for sick leave under the ordinances if they: (1) work at least 80 hours for a covered business in any 120-day period; and (2) perform at least two hours of that work in Cook County or Chicago during any two week period. Any compensated time that an employee spends travelling within the municipalities' boundaries can count toward the two-hour requirement, but non-compensable commuting time does not count.
Notably, the ordinances do not apply to collective bargaining agreements which are in place before July 1, 2017. For collective bargaining agreements ratified after July 1, 2017, employees governed by these agreements will be entitled to the paid sick leave required by the ordinances, unless the employees clearly, expressly, and unambiguously waive their rights under the ordinances in that collective bargaining agreement.
Sick Leave Accrual and Entitlement
Qualifying employees begin to accrue paid sick leave on July 1, 2017, or the first day after they start employment, if hired after July 1. These employees accrue one hour of paid sick leave for every 40 hours worked. However, the ordinances indicate that there shall be no fractional accruals. For example, an employee who works 100 hours only accrues two hours of leave, not 2.5, but will have accrued 3 hours of paid leave once he/she works 120 hours.
With exempt employees, the ordinance assumes (or defaults to) a 40-hour work week. If an exempt employee works fewer than 40 hours per week, paid sick leave will accrue based on the number of hours in the employee's actual work week. For instance, a full-time exempt employee that regularly works 50 hours a week will accrue one hour of paid leave every week and five hours every four weeks (due to no fractional accruals). Whereas, a part-time exempt employee that regularly works 30 hours a week will accrue one hour of paid leave every two weeks and three hours every four weeks.
The ordinance permits businesses to cap paid sick leave at 40 hours per 12-month period (the 12-month period starting on the date the employee begins accruing leave and ending 12 months later). Employees can carry over, however, up to 20 hours to the subsequent 12-month period (subject to the 40-hour cap). If an employee qualifies for FMLA, he or she may carry over up to 40 hours of additional paid leave (beyond the 20 hours mentioned above) for exclusively FMLA purposes.
Employers need not pay out any unused sick leave as cash upon termination or restore unused leave for rehired or reinstated employees, unless a collective bargaining agreement provides otherwise.
Employees must have the ability to begin using accrued paid sick leave no later than their 180th calendar day after their employment commences. Employees can use the leave for their own illness, injury, or medical care, or for that of covered family members. Employees may also use paid sick leave if the employee or a family member is a victim of domestic violence or a sex offense, or if the employee’s place of business or child care facility has been closed due to a public health emergency.
Covered businesses may require employees to provide seven days of notice prior to taking paid sick leave, only if the need for the leave is foreseeable. Otherwise, employees may provide notice as soon as practicable. Businesses also may require the employee to certify that leave is for a qualifying purpose, but only if the employee requires more than three consecutive leave days. Businesses cannot require the certification to specify the nature of the medical issue necessitating the leave.
Existing PTO Policies
If an employer currently has a policy that grants employees paid time off in a manner consistent with the new ordinances, it need not provide additional paid leave. It will, however, need to conform its policy to meet the requirements of these new ordinances. Due to significant differences in paid leave policies from employer to employer, you should consult legal counsel regarding any modifications required for your specific policy.
Starting on July 1, 2017, covered businesses must conspicuously post a notice describing employee rights under the ordinances. Both the Chicago City Council and Cook County Board of Commissioners have promised to upload a compliant notice poster on their website before July 1. Businesses must post this notice in each facility where any eligible employee works.
The most obvious action item for employers subject to these new leave laws is to review and update existing policies. Here are a few other action items to consider as compliance deadlines approach:
- Train human resources and occupational health teams on the new compliance obligations;
- Post notice conspicuously in facilities that have covered employees in Chicago and Cook County;
- Update employee handbooks and internal communications to reflect changes in the law; and
- Update internal attendance and leave tracking systems to conform to the changes.