On October 5, 2016, the Cook County Board passed an ordinance requiring employers to provide employees with paid sick leave. The ordinance mirrors the previously enacted city of Chicago’s Paid Sick Leave Act, and will go into effect on July 1, 2017. Cook County employers of all sizes are covered under the ordinance, as well as any employee who (1) performs at least two hours of work for an employer while physically present within the geographic boundaries of Cook County in any particular two-week period, and (2) works at least 80 hours for an employer within any four-month period. As such, most part-time workers are covered. The ordinance does not apply to construction workers, and the sick leave requirements can be waived by employees with collective bargaining agreements.
Under the ordinance, employees must accrue one hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours paid sick leave per year, unless the employer chooses to set a higher limit. Employees must be allowed to use accrued paid sick leave no later than 180 days following the commencement of employment. In addition, employees may carry over up to 20 hours of unused paid sick leave to the next year. Employers covered by the Family and Medical Leave Act (FMLA) must allow covered employees to carry over an additional 40 hours to be used for FMLA-eligible purposes.
Employers must also allow employees to use paid sick time not only when the employee is ill, but also for the care of sick family members. The ordinance defines “family member” broadly; the definition includes all blood relatives of a covered employee, as well as the employee’s spouse, domestic partner, spouse or domestic partner’s parent, any family members resulting from an adoption, step-relationship, and/or foster care relationship, along with any individual whose close association with the employee is the equivalent of a family relationship. In addition, employees may use sick leave if the employee or a family member experiences domestic violence, or if the employee’s place of business or their child’s school or child care facility has been closed due to a public health emergency.
Up to seven days’ advance notice may be required if the employee’s need to use sick leave is foreseeable. If it is not foreseeable, employees must provide notice as soon as soon as is practicable. Employers may also set standards indicating the minimum increments for use of the paid sick leave, not to exceed a minimum of four hours a day. Further, an employer may require employees to provide certification that leave was used for permitted purposes if the employee is absent three consecutive workdays. However, an employer cannot prevent an employee from taking paid sick leave or delay compensation because the employee has not yet submitted certification.
Finally, employers that have a Paid Time Off (PTO) policy that grants employees leave in an amount and a manner that meets the requirements of the new paid sick leave ordinance are not required to provide additional paid leave. Any existing PTO policy must meet each requirement of the ordinance. If it does not, it must be modified to comply accordingly. Per the ordinance, employers must post notice of these rights in a prominent location within its Cook County facilities. Employees must also be provided written notice advising them of their rights at the start of employment. Further, the ordinance expressly prohibits employers from discriminating or retaliating against employees who exercise their rights under the ordinance.
Nonetheless, the actual reach of the Cook County ordinance remains unclear. A number of home rule municipalities, including the cities of Palatine, Barrington and Mount Prospect, have indicated their intent to pass resolutions exempting local businesses from the Cook County law. The Cook County State’s Attorney’s Office has released conflicting statements in respect to its authority to issue the Ordinance. On July 22, 2016, the State’s Attorney’s Office stated in a memo, “such ordinance would be applicable countywide except to the extent that it conflicted with the ordinance of a municipality, home rule or otherwise, in which case the municipal ordinance would prevail within the municipality's jurisdiction.” The Office further stated that what would be considered a conflict would need to be decided on a case-by-case basis, as case law has not defined the word “conflict” in this instance. Thereafter, on October 4, 2016, the State’s Attorney’s Office stated that the Ordinance is lawful because it provides workers protections greater than those provided by the state, and arises from the County’s ability to regulate in the interest of public health.
Despite this uncertainty, employers are encouraged to review their leave policies to ensure they will be in compliance with each requirement of the ordinance in advance of July 1, 2017. Any violation of the ordinance may result in damages to the employee equal to three times the amount of any unpaid sick leave time denied or lost as a reason of the violation, as well as interest, costs and reasonable attorney’s fees.