On July 1, 2017, the City of Chicago and Cook County’s Paid Sick Leave Ordinance takes effect. We previously blogged about this topic here.

To recap, the new Ordinances would require most Cook County and Chicago employers to provide the following sick leave benefits:

  • Employees accrue paid sick leave (“Paid Leave”) of at least one hour for every 40 hours worked, up to a maximum of 40 hours per 12-month period.
  • Employees can carry over up to half of their accrued Paid Leave, up to a maximum of 20 hours, from one year to the next.
  • For employers that are covered by the Family and Medical Leave Act (“FMLA”), employees may carry over up to 40 hours of unused Paid Leave. An employee who uses the carried over 40-hours of FMLA leave for FMLA covered purposes is entitled to use an additional 20 hours of accrued Paid Leave in the same 12-month period, increasing the employer’s Paid Leave obligation to 60 hours.
  • Covered “family members” include individuals related by blood or whose close association with the employee is the equivalent of a family relationship.

Coverage

The Chicago ordinance would apply to any individual or entity that gainfully employs at least one eligible employee and maintains a business facility within the geographic boundaries Chicago. The ordinance exempts employers who provide their employees paid time off in an amount and manner that meets or exceeds the ordinance’s minimum standards and requirements. The Chicago ordinance defines “employee” to cover any individual permitted to work by an employer who works in Chicago for at least 80 hours in any 120-day period. The ordinance excludes a number of workers from coverage, including any employee working in the construction industry who is covered by a bona fide collective bargaining agreement.

The Cook County Ordinance covers any employee working for at least two hours in any two week period while physically present in the geographic boundaries of Cook County. The County Ordinance will not consider work that an individual performs within the geographic boundaries of a municipality that has lawfully preempted the Ordinance, including Chicago, when determining employee coverage.

How Much Paid Leave Do Employees Get?

Under the Chicago and Cook County Ordinance, employees begin accruing Paid Leave on the first calendar day following the start of their employment or on July 1, 2017, whichever is later. New hires are entitled to use accrued Paid Leave 180 calendar days after the commencement of their employment. Employees would accrue Paid Leave at the rate of one hour for every 40 hours worked, up to a maximum of 40 hours per 12-month period, with carry over allowed of up to half of their accrued, unused Paid Leave up to a maximum of 40 hours the following year. In addition, if an employer is subject to the FMLA, each eligible employee shall be allowed to carry over up to 40 hours of accrued, unused Paid Leave at the end of the 12-month accrual period to be used exclusively for FMLA covered purposes. If an employee uses the carried over 40-hours of FMLA leave, the employee is entitled to use no more than an additional 20 hours of accrued Paid Leave in the same 12-month period.

Covered Reasons

Under both Ordinances, an employee can use Paid Leave for any of the following reasons:

  • When the employee or a covered family member is ill or injured, or is receiving medical diagnosis, care, or treatment, or preventive medical or health care;
  • Certain absences of the employee or the employee’s family member who is a victim of domestic violence, a sex offense, or stalking; and
  • Closure of the employee’s place of business or the employee’s child’s school or place of care by order of a public official due to a public health emergency.

“Family member” is defined to include, among other things, an employee’s child, legal guardian or ward, spouse under the laws of any state, domestic partner, parent, spouse or domestic partner’s parent, sibling, grandparent, grandchild, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Paying Accrued Leave

Employers must pay Paid Leave at the same rate and with the same benefits, including health care benefits, that the employee regularly earns during hours worked. For tipped employees, the employee would be entitled to receive at least the full minimum wage when being paid for used sick leave. Employers are not obligated to cash out an employee’s accrued, unused Paid Leave upon separation of employment.

Notice Requirements

The ordinances allows employers to require up to seven days’ advance notice of the intention to use Paid Leave for foreseeable absences. lf the need to use Paid Leave is not foreseeable, such as for a sudden illness, an employer may require an employee to give notice as soon as practicable via phone, e-mail, or text message.

Covered employers are required to post a notice advising employees of their rights under the ordinance in a conspicuous place at any workplace or job site. In addition, every employer would be mandated to provide a notice advising an eligible employee of his or her rights under the ordinance when the first paycheck subject to the ordinance is issued to the employee.

Proof of Illness

The Ordinances allow employers to require reasonable documentation that the employee used paid leave for a permitted purpose only when the employee is absent for more than three consecutive workdays. Such documentation includes documentation signed by a licensed health care provider, or where an employee is absent to care for a victim of domestic violence or covered sex offenses, a police report, court document, a signed statement from an attorney, a member of the clergy, or a victim services advocate, or any other evidence that supports the employee’s claim.

New Rules

On May 25, 2017, Cook County released a copy of its approved paid sick leave “Interpretative and Procedural Rules” (the “Final Rules”). The Final Rules were issued after the conclusion of a public comment period on the County’s draft sick leave rules. Employers should assess and take the Final Rules into account as they prepare for the County’s Earned Sick Leave Ordinance’s July 1, 2017 effective date.

Chicago has released its own draft paid sick leave rules, which were open for public comment until June 16, 2017. Consequently, Chicago employers are still waiting for the City’s final paid sick leave rules.

Differences between Cook County and Chicago Ordinances and Open Questions

There are inconsistencies between the final County regulations and draft City regulations, and it remains to be seen whether the City will resolve those conflicts in its final regulations. Among the issues is how the frontloading of paid sick leave for FMLA-covered employers should be calculated to avoid accrual and carry-over obligations.

What Employers Should Do

Chicago employers should begin taking steps to ensure that they will be able to achieve full compliance with the ordinance by the law’s July 1, 2017 effective date, including updating any sick leave or paid time off policies.