Beginning July 1, 2017, employers that maintain a place of business in the city of Chicago or other locations in Cook County, Ill., will need to comply with recently passed ordinances providing “covered employees” with up to 40 hours of paid sick leave every year. Covered Employees A “covered employee” is any employee who works at least two hours in a two-week period while physically present in the respective geographic boundary (either Cook County or Chicago) and works at least 80 hours in any 120-day period. Under the Chicago ordinance, certain government employees, employees who participate in certain government-subsidized programs and employees who are under the age of 18 are not “covered employees.” An employer may require employees to work up to 180 days before permitting them to use any accrued sick leave. If an employee separates before the conclusion of the 180-day period, the employer is not required to pay the employee the sick leave he or she has accrued but not used. Accordingly, an employer with this requirement may avoid providing paid sick leave to a seasonal or temporary employee whose term of employment is less than 180 days, provided there are at least 120 days between successive periods of seasonal or temporary employment. Covered Employers The definition of “employer” is similarly broad and includes individuals or companies that employ at least one covered employee and maintain a place of business in the respective geographic boundary (either Cook County or Chicago). Employers with business facilities in Cook County outside of Chicago are subject to the Cook County ordinance, unless the municipality in which they operate has opted out of the ordinance. Units of local government that have opted out of the Cook County ordinance presently include Barrington, Bedford Park, Elmwood Park, Mount Prospect, Oak Forest, Palos Park, River Forest, Rolling Meadows, Rosemont, Schaumburg, Streamwood, Tinley Park and Wheeling. Sick Leave Accrual and Uses
Under the ordinances, covered employees accrue one hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours of paid sick leave in a 12-month period. An employee exempt from overtime requirements accrues paid sick leave based on the number of hours worked in a normal work week, up to 40 hours. If an employee does not use all of his or her accrued paid sick leave, he or she may carry over to the following year half of all unused, accrued time, up to 20 hours. Additionally, employers who are subject to the Family and Medical Leave Act (the “FMLA”) must allow employees to carry over up to 40 hours of accrued, unused paid sick leave to the following plan year for purposes that are eligible for leave under the FMLA. Employers are not required to pay employees accrued but unused paid sick leave upon separation from employment. Instead of this accrual method, employers are also permitted to award employees a lump sum of 40 hours of paid sick leave immediately upon the date of an employee’s eligibility. Under this method, paid sick leave is not carried over into the following plan year, although employers who are subject to the FMLA must provide an additional grant or carryover of paid sick leave for FMLA purposes. The lump sum approach may eliminate the burden of calculating accrued paid sick leave, but it could also result in some employees being granted more sick leave than they would have otherwise been eligible to receive. Covered employees may use accrued paid sick leave in the following situations:
- The employee or the employee’s family member is ill or injured.
- The employee needs to receive medical care, treatment, diagnosis or preventative medical care.
- The employee needs to care for a family member receiving medical care, treatment, diagnosis or preventative medical care.
- The employee or the employee’s family member is the victim of stalking or domestic or sexual violence.
- The employee’s place of business is closed due to a public health emergency.
- The employee needs to care for a child whose school or place of care has been closed due to a public health emergency.
An employer may require that a covered employee provide up to seven days’ notice if the paid sick leave is reasonably foreseeable. Even if the leave is not reasonably foreseeable, an employer may require that a covered employee notify the employer via phone, email or text message on the same day the sick leave is taken. Additionally, an employer may require certification that the leave was authorized if the covered employee is absent for more than three consecutive work days. Takeaway for Employers Employers with facilities in Chicago or Cook County should assess whether either ordinance is applicable, update existing sick leave policies to conform to the applicable ordinance and train supervisory personnel to comply with the ordinance(s). Taft attorneys are available to consult with employers as to best practices for policies and the status of paid sick leave laws across the country.