Illinois has enacted two sets of amendments to statutes that will impact employers on January 1, 2023. Businesses will need to review and potentially modify existing policies.

ONE DAY REST IN SEVEN ACT

On May 13, 2022, Illinois Governor J.B. Pritzker signed Senate Bill 3146 into law, amending the One Day Rest In Seven Act (ODRISA). ODRISA was enacted to provide employees with a day of rest in each workweek and meal or rest breaks during daily work shifts.

The amendments to ODRISA redefine the period in which an employee is entitled to “twenty-four consecutive hours of rest” and include new meal break and employer notice obligations. The law also increases penalties on employers that violate the meal and rest break requirements.

The amendments do not alter the definitions of “employer” or “employee.” The statute continues to apply to employers with one or more employees in Illinois, and continues to exclude enumerated categories of employees from coverage, including part-time employees whose total hours worked for one employer during a calendar week do not exceed 20 and employees who are employed in a bona fide executive, administrative, or professional capacity, or as an outside salesman, as defined by the federal Fair Labor Standards Act (FLSA).

New Definition of ‘Work Period’

Currently, ODRISA requires that employers provide covered employees with “at least twenty-four consecutive hours of rest in every calendar week.” (Emphasis added.) The amendment removes the term “calendar week” and now requires “at least twenty-four consecutive hours of rest in every consecutive seven-day period.” (Emphasis added.)

Thus, ODRISA now applies to any employee who works six consecutive days, regardless of whether the employee’s schedule aligns with a Sunday to Saturday calendar workweek.

Additional Meal Period Required for Shifts over 12 Hours

ODRISA already required employers to provide all employees who work 7½ continuous hours “at least 20 minutes for a meal period beginning no later than 5 hours after the start of the work period.” The amendment requires employers to provide “[a]n employee who works in excess of 7½ continuous hours [with] . . . an additional 20-minute meal period for every additional 4½ continuous hours worked,” and further clarifies that “a meal period does not include reasonable time spent using the restroom facilities.” (Emphasis added.) Thus, an employee who works a 12-hour shift will now be entitled to two unpaid meal periods.

Although the amended ODRISA references 20-minute meal periods, if an employer provides unpaid meal breaks, then under the FLSA, the meal period must be at least 30 minutes long and the employee must be relieved of all work duties during this time.

New Notice Requirements

The amendments further require employers to “conspicuously” post at the workplace a notice provided by the Illinois director of labor summarizing the requirements of ODRISA and information regarding filing a complaint. For remote or traveling employees, employers must provide the notice by email or on a website “regularly used by the employer to communicate work-related information, that all employees are able to regularly access, freely and without interference.” The Illinois Department of Labor (IDOL) intends to make this notice available to employers on its website, presumably before the January 1, 2023, effective date.

Increased Penalties for Noncompliance of Meal and Rest Break Periods

Employers will face heightened penalties and damages payments depending on the employer’s size. Employers with fewer than 25 employees may be fined up to $250 in penalties payable to the IDOL and damages up to $250 payable to the affected employee(s) per offense. Employers with 25 or more employees can face penalties up to $500 payable to the IDOL and damages up to $500 to the affected employee(s) per offense.

Employers should note that fines can multiply quickly under the new amendments. The following violations are separate offenses, determined “on an individual basis for each employee whose rights are violated”:

  • “Each week that an employee is found to not have been allowed 24 consecutive hours of rest . . . shall constitute a separate offense.”
  • “Each day that an employee is found not to have been provided a meal period . . . shall constitute a separate offense.”

FAMILY BEREAVEMENT LEAVE ACT

On June 9, 2022, Governor Pritzker signed Senate Bill 3120, also known as the Family Bereavement Leave Act, into law. The act is an amendment to the Child Bereavement Leave Act, which covers public and private employers with at least 50 employees and employees who have worked 1,250 hours for the employer during the prior 12-month period (similar to the federal Family and Medical Leave Act).

Expanded Leave Requirements

Per the amendment, covered Illinois employers must provide up to 10 workdays of unpaid leave to employees who are absent due to any of the following events:

  • A miscarriage
  • An unsuccessful round of intrauterine insemination or an assisted reproductive technology procedure
  • A failed adoption match or an adoption that is not finalized because it is contested by another party
  • failed surrogacy agreement
  • A diagnosis that negatively impacts pregnancy or fertility
  • A stillbirth

The act also requires employers to provide 10 workdays of unpaid leave for employees attending the funeral of a covered family member, making arrangements necessitated by the death of a covered family member, or grieving the death of a covered family member.

It expands the definition of “covered family member” to include children, stepchildren, spouses, domestic partners, siblings, parents, parents-in-law, grandchildren, grandparents, or stepparents. The act also defines “domestic partners” to include adults who are in a committed relationship and is not limited to legally recognized partnerships. Previously, the act only allowed leave for these events to grieve a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.

Employers May Request ‘Reasonable Documentation’ to Justify Leave

The act also specifies that employers may, but are not required to, request “reasonable documentation” to support an employee’s request for pregnancy- or adoption-related bereavement leave.

If an employer requires documentation to justify such a leave, “reasonable documentation” shall include one of the following:

  • A form provided by the IDOL to be filled out by a healthcare practitioner who has treated the employee, the employee’s spouse or domestic partner, or the surrogate for a covered event
  • Documentation from the adoption or surrogacy organization that the employee worked with certifying that the employee or his or her spouse or domestic partner has experienced a covered event
  • The act still permits employers to request documentation to support bereavement leave for the death of a family member. However, an employer may not require that the employee identify which category of event the leave pertains to as a condition of exercising rights under the act.

WHAT SHOULD ILLINOIS EMPLOYERS DO NOW?

Illinois employers should take the following steps to comply with these expanded requirements before January 1, 2023:

  • Review and potentially revise employee work schedules to ensure current practices/schedules allow for one day of rest in every consecutive seven-day period.
  • Make plans to comply with the new meal period requirements for shifts of 12-plus hours.
  • Consult the IDOL website, which will likely be updated this year to provide guidance and a template for the required notice to employees described above.
  • Review and revise company leave policies to ensure they are compliant with the expanded requirements under the Family Bereavement Leave Act.