Sick Leave Headaches for Illinois Employers in 2017

Sick Leave Headaches for Illinois Employers in 2017

While employers throughout Illinois are preparing for a metaphorical headache in complying with that state’s new Employee Sick Leave Act, employers in the Chicago area may be getting ready for the equivalent of dizziness and blurred vision.  That is because, in addition to having to comply with the Employee Sick Leave Act (“Sick Leave Act”), employers in Cook County must comply with the Cook County Earned Paid Sick Leave Ordinance.  Likewise, Chicago employers will have to comply with the Chicago Paid Sick Leave Ordinance.  The Sick Leave Act and both of those ordinances go into effect in 2017.

Employers may feel a malaise of sorts in complying with these three laws, especially insofar as they tend to create overlap and uncertainty.  Nonetheless, now is the time for employers to inoculate themselves by confirming whether they are subject to one, two or all three of these laws and then taking steps to grasp and comply with the obligations imposed by the applicable law(s).

The Sick Leave Act, which took effect on January 1, 2017, is not likely to prove fatal for Illinois employers.  That is because it does not require those employers to provide sick leave.  Instead, it merely adds to the list of reasons that employees may use paid sick leave that is already provided by their employer.  For example, an employee who already has paid sick leave now may use it to cover an absence necessitated by an illness, injury or medical appointment of the employee’s close relative (e.g., child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent).

Meanwhile, the Cook County Earned Paid Sick Leave Ordinance (“Cook County Ordinance”) may be seen by some as more of an epidemic. It is expected to cover 442,000 workers outside the City of Chicago when it becomes effective on July 1, 2017.  According to this ordinance, an employer must allow a covered employee to accrue up to 40 hours of paid sick leave during the course of a 12-month period.  An employee is covered under the Cook County Ordinance if he or she has worked 80 hours within a 120-day period.  However, employers do not have to permit an employee who is covered by this ordinance to use paid sick leave until the employee has been employed for 180 days.

Under the Cook County Ordinance, an employee may use sick time for his or her own illness and also to receive medical care, treatment, diagnosis or preventative medical care.  An employee additionally can use the paid sick leave mandated by this ordinance to enable a member of his or her family to receive medical care, treatment, diagnosis or preventative medical care.  “Family” in this sense includes any individual related by blood or whose close association with the employee is the equivalent of a family relationship (e.g., foster parents and step-parents or step-children).  This ordinance also requires paid sick leave when an employee or an employee’s family member has been the victim of domestic violence or sexual abuse or when a business is closed due to a public health emergency.

The Cook County Ordinance allows an employer to require a physician’s certification to confirm that the leave was a permissible one if the employee takes more than three days of paid sick leave.  However, regardless of whether the leave was prompted by the employee’s own condition or that of a family member, the employer may not require any documentation to specify the nature of the illness, injury or condition for which the leave was taken.  At the same time, employers are not allowed to delay payment of sick leave while awaiting that certification.

Municipalities within Cook County may prescribe some medicine of their own in this regard.  That is because, according to the state Constitution, municipal ordinances trump when they conflict with a county ordinance.  It has been reported that a number of municipalities already have taken steps toward opting out of the Cook County Ordinance.  Rather than merely opting out of the Cook County Ordinance, Chicago passed its own version of it.

The Chicago Paid Sick Leave Ordinance (“Chicago Ordinance”) also takes effect on July 1, 2017.  It requires employers provide 40 hours of paid sick leave for every 12-month period of employment with carryovers.  For example, 20 unused paid sick-leave hours carry over into the following 12-month period.

Employers only have to have one employee in order for the Chicago Ordinance to be applicable to them.  Additionally, to be covered by this ordinance, the employer must either be subject to at least one of Chicago’s licensing requirements or have a business facility within the geographic boundaries of the City of Chicago.

For an employee to be covered under the Chicago Ordinance, he or she must work at least two hours during any two-week period within the City of Chicago.  Such employees become covered once they have worked 80 hours within a 120-day period.  Like the Cook County Ordinance, employers covered by the Chicago Ordinance do not have to permit an employee to use paid sick leave until the employee has been employed for 180 days.

The Chicago Ordinance applies to salaried and hourly employees, but special rules apply to unionized employees.  Employers may not discipline an employee for taking a leave covered by the Chicago Ordinance, even if the employer utilizes a no-fault attendance policy.  The grounds-for-leave and certification provisions in this ordinance are comparable to those in the Cook County Ordinance.  Accrual of paid sick leave under the Chicago Ordinance is calculated in one-hour increments, but fractional accrual is not permitted.  This ordinance also does not require employers to pay for unused paid sick leave upon termination.

The Chicago Ordinance does require an employee to provide at least seven days of notice when the employee knows that he or she will be using the paid sick leave.  However, if his or her use of such time is not reasonably foreseeable, the employee only has to notify the employer as soon as practicable.  In this vein, phone calls, e-mails, and text messages are all permissible means to provide such notification.

To avoid the afflictions that may come from violating any of these laws, employers should administer to themselves the equivalent of a flu-shot right away.  That means consulting knowledgeable legal counsel to assess which new law is applicable to them, updating existing policies accordingly, and then training managers and supervisors to comply with the law(s).

Contributor: Brendan J. Begley, Attorney at Law | Weintraub Tobin