Cook County, IL Passed an Earned Sick Leave Law

October 24th, 2016

Cook County, IL Passed an Earned Sick Leave Law

On October 5, 2016, the Cook County, Illinois Board of Commissioners passed the “Earned Sick Leave Ordinance” (the “Ordinance”), the second such law in the state. For employers with a place of business within Cook County, that employ at least one Covered Employee—meaning any employee who, in any particular two-week period, performs at least two hours of work for an employer while physically present within the geographic boundaries of Cook County—the Ordinance is scheduled to become effective on July 1, 2017. The Cook County Commission on Human Rights (the “Agency”) will enforce the Ordinance.

  • Which Employers Are Covered Under the Ordinance?

The Ordinance defines “employer” as any individual, partnership, association, corporation, limited liability company, business trust, or any person or group of persons that gainfully employs at least one Covered Employee with a place of business within Cook County. Excluded from employers are: (1) the U.S. government or government owned corporations; (2) Indian tribes or a corporations owned by an Indian tribe; (3) the Chicago government or any agency or department thereof; and (4) local government. The Ordinance does not differentiate between employers based on size.

The Ordinance expressly states that if employers have an existing policy that grants Covered Employees with paid time off in an amount and a manner that meets the requirements for Earned Sick Leave (“ESL”) under the Ordinance, the Employer is not required to provide additional paid leave. However, if the Employer’s existing policy awards the full amount of paid time off immediately as opposed to using an accrual model, the Employer must award each Covered Employee 40 hours of paid time off within one calendar year of his or her date of eligibility.

  • Which Employees Are Covered by the Ordinance?

The Ordinance defines “Covered Employee” broadly. Specifically, as explained above, a Covered Employee means any employee who, in any particular two-week period, performs at least two hours of work for an Employer while physically present within the geographic boundaries of Cook County. A Covered Employee must also work at least 80 hours for an Employer within any 120-day period to be eligible for ESL. Although the Ordinance is silent as to whether part-time or temporary employees qualify, presumably if they meet the requirements, they would be covered. Unlike other municipal ordinances that expressly exclude independent contractors, the Ordinance is silent as to whether they are covered.

  • How Much Sick Time Can Employees Accrue, Use, and Carryover?

Employees begin earning sick leave at the commencement of employment or on July 1, 2017, whichever is later. Employers must allow a Covered Employee to begin using ESL no later than 180 calendar days following the commencement of his or her employment. However, the law is silent on whether this 180-day waiting period applies to employees who work for the Employer on July 1, 2017.

Employers must allow Covered Employees to accrue ESL at least as fast as one hour for every 40 hours worked. ESL shall accrue only in hourly increments; fractional accruals are prohibited. Covered Employees who are exempt from overtime requirements are assumed to work a 40 hour workweek (unless the employee’s normal work week is less than 40 hours, in which case ESL accrues based on that employee’s normal work week).

The Ordinance provides a cap of 40 hours of ESL accruable in any 12-month period (although the law does not prohibit Employers from setting a higher limit). The 12-month period is calculated from the date the Covered Employee begins to accrue ESL. At the end of a Covered Employee’s 12-month accrual period, he or she must be allowed to carry over to the following 12-month accrual period half of his or her unused accrued ESL—up to a maximum of 20 hours.

However, and like the Chicago sick leave ordinance, the Cook County law adds a unique twist: if an Employer is subject to the Family Medical Leave Act (“FMLA”), the Employer’s Covered Employees are allowed to carry over up to 40 hours of additional unused accrued ESL, to be used exclusively for FMLA eligible purposes. As such, under the Ordinance, a Covered Employee working for an Employer who is not subject to the FMLA can have, at most, 60 hours of combined accrued and carried over ESL. Covered Employees working for an Employer who is subject to the FMLA can have, at most, 100 hours of combined accrued and carried over ESL in a 12-month period.

However, the Ordinance also states that a Covered Employee is not entitled to use more than 40 hours of ESL in a 12-month period, unless the Employer sets a higher limit. The only exception to this is if a Covered Employee carries over 40 hours of FMLA leave and uses that leave, the employee is entitled to use up to 20 additional hours of ESL in the same 12-month period, unless the Employer sets a higher limit.

The Ordinance is silent on front-loading.

  • Under What Circumstances May Employees Use Sick Leave?

A Covered Employee may use ESL when: (a) he or she is ill or injured, or for the purpose of receiving medical care, treatment, diagnosis or preventative medical care; (b) a member of his or her family is ill or injured, or to care for a family member receiving medical care, treatment, diagnosis or preventative medical care; (c) he or she or a member of his or her family is the victim of domestic violence, sexual violence, or stalking; or (d) his or her business is closed due to a public health emergency or to care for a child whose school or place of care is closed due to a public health emergency.

The Ordinance defines “family member” to include a Covered Employee’s child, legal guardian or ward, spouse, 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 Covered Employee is the equivalent of a family relationship.

Employers may set a reasonable minimum increment for use of ESL as long as it does not exceed four hours per day.

  • What is the Rate of Pay for Sick Leave?

Employers must compensate an employee who uses ESL at the same rate and with the same benefits, including health care benefits, that the Covered Employee regularly earns during hours worked. The law is silent on whether this includes tips or commissions.

  • What Notice Must Employees Provide When Using a Sick Day?

The Ordinance provides that if use of ESL is reasonably foreseeable, an Employer may require up to seven (7) days’ notice before leave is taken. If the need for ESL is not reasonably foreseeable, an Employer may require a Covered Employee to give notice as soon as is practicable on the day the ESL is to be taken by notifying the Employer via phone, e-mail, or text message. However, in order to require Covered Employees to provide notification, the Employer must notify Covered Employees in writing of the policy and the policy cannot be unreasonably burdensome.

  • Can Employers Require Employees to Provide a Medical or Other Documentation?

Employers can require certification that the employee used ESL for a permitted purpose only when the employee is absent for more than three consecutive workdays. The Ordinance sets out the types of documents that satisfy this requirement.  Nothing in the Ordinance prohibits Employers from taking disciplinary action against a Covered Employee who uses ESL for other purposes than those permitted, although policing may be difficult with this constraint.

  • What Notice Must Employers Provide?

Employers must post a notice in a conspicuous place at each facility that is located within Cook County where any Covered Employee works advising of the right to ESL. In addition, at the commencement of employment, every Employer must provide a Covered Employee with a written notice advising of his or her rights to ESL. The Agency will prepare and make available model notices that satisfy these requirements.

  • What Records Must Employers Maintain?

The Ordinance is silent regarding what records an employer must maintain. Illinois employers generally have recordkeeping requirements regarding wages, hours worked, overtime, etc., and thus best practice would be to include recordkeeping for ESL as well. We will advise you on any updates.

  • What Can Employers Not Do?

Employers cannot: (a) require a Covered Employee taking ESL to search for or find a replacement worker; (b) determine how much ESL a Covered Employee needs to use; (c) require medical documentation to specify the nature of the injury, illness, or condition; or (d) discriminate or retaliate against any Covered Employee for exercising or attempting in good faith to exercise any right under the Ordinance, including but not limited to using an absence-control policy to count ESL as an absence that triggers discipline, discharge, demotion, suspension or other adverse action.

  • Must Unused Sick Time Be Paid Upon Employment Separation?

The Ordinance does not require Employers to cash out an employee’s accrued, unused ESL upon termination, resignation, retirement or other separation from employment.

  • What Should Employers Do Now?

Cook County employers should take steps now to ensure that they will be able to achieve full compliance with the Ordinance by the July 1, 2017 effective date. These are among the actions to consider:

  • Review existing policies and procedures immediately to ensure that they meet at least the minimum requirements for Covered Employees or develop a new paid sick leave policy that complies with the Ordinance.
  • Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking ESL.
  • Prepare to comply with the Ordinance’s posting and notification requirements and monitor the Agency’s website for template notices and other guidance and updates on the Ordinance.
  • Train supervisory and managerial employees, as well as HR, on the Ordinance’s requirements.

 

Superior Staffing will continue to monitor the Cook Count Ordinance and keep our valued clients updated.

Labor & Employment Client Alert | October 17, 2016

October 20th, 2016

On October 5, 2016, the Cook County Board of Commissioners enacted an ordinance that will require employers throughout Cook County, Illinois to provide paid sick leave to employees (the “Cook County Ordinance”). The Cook County Ordinance adopts the same terms set as forth in the Chicago Paid Sick Leave Ordinance, which was passed by the Chicago City Council in June, and goes into effect on the same day: July 1, 2017. Once the ordinances take effect, employees throughout Cook County will accrue 1 hour of paid sick leave for every 40 hours worked. Employees will be able to accrue up to 5 days of paid sick leave per year, unless the employer’s policies provide for a greater benefit. Employers throughout Cook County (including in Chicago) should update their sick leave policies prior to July 1, 2017, the effective date of the Cook County and Chicago Paid Sick Leave Ordinances, to ensure compliance with these new requirements.

 

Employers in Chicago Take Note: Impending City Ordinance to Require Paid Sick Leave

April 19, 2016

Chicago is likely to become the next municipality to require employers to provide paid sick leave. On April 13, 2016, the Chicago City Council proposed an amendment to the Chicago Minimum Wage Ordinance that would require employers to provide a minimum of five days per year of paid sick leave to virtually all employees. The proposed ordinance has strong support among Chicago aldermen and is likely to become law this year. Thus, employers with operations in the city should be aware of the following major provisions and requirements of the proposed ordinance that are widely expected to take effect.

Who Is Affected by the Paid Sick Leave Ordinance?

The proposed ordinance applies broadly to all employees who work at least 80 hours within any 120-day period for an employer that maintains a business facility within the city of Chicago or that is subject to city licensing requirements, regardless of the number of persons the employer employs. Put another way, the paid sick leave requirement will apply to most employees in the city of Chicago.

How Much Paid Sick Leave Do Employees Accrue?

Under the proposed ordinance, employees would accrue paid sick leave at a rate of one hour for every 40 hours worked, beginning on their first day of employment or on the effective date of the ordinance (currently slated as July 1, 2017). Employees who are exempt from overtime requirements are assumed to work 40 hours each week, unless their normal workweek is less than 40 hours, in which case paid sick leave accrues based on the employee’s normal work week.

Employees accrue up to 40 hours of paid sick leave per 12-month period (which is measured from the date the employee begins to accrue paid sick leave), unless the employer sets a higher accrual limit. In addition, employees can carry over half of their unused accrued sick leave at the conclusion of the 12-month accrual period, up to a maximum of 20 hours. If the employer is subject to the Family and Medical Leave Act (FMLA), employees can carry over up to 40 hours of unused accrued paid sick leave to use exclusively for FMLA-eligible purposes. However, if an employee carries over and uses those 40 hours toward FMLA leave, he or she may use no more than an additional 20 hours of accrued paid sick leave in the same 12-month period.

When May an Employee Use Paid Sick Leave?

Employers should know that approved “paid sick leave” reasons under the proposed ordinance are quite broad. Namely, an employee may use paid sick leave not only for purposes of recovering from an injury or receiving medical care, but also when:

• A member of the employee’s family is ill or injured, or to care for a family member receiving medical care, similar to the FMLA’s eligibility criteria;
• The employee or a member of the employee’s family is a victim of domestic violence;
• The employee’s place of business is closed due to a public health emergency, or the employee needs to care for his or her child whose school has been closed due to a public health emergency.

Employees may determine how much paid sick leave is necessary in a given day, provided that the employer may set a reasonable minimum increment not to exceed 4 hours per day.

In addition, employers may require employees to provide up to 7-days notice when the need for leave is foreseeable. When the need for leave is not foreseeable, employers only may require employees to provide notice as soon as practicable.

What Is the Rate of Pay for Paid Sick Leave?

Employers are required to compensate employees for paid sick leave at the same rate and with the same benefits, including health benefits, as the employee earned immediately prior to taking paid sick leave.

However – and significantly in Illinois, where employers must pay any earned, unused vacation to employees upon the termination of their employment – under the proposed ordinance employers will not be required to pay out unused, accrued paid sick leave to employees upon termination, unless an applicable collective bargaining agreement provides otherwise.

Are Any Employees Excluded From the Ordinance?
Employers with seasonal or temporary employees potentially may avoid the paid sick leave requirement. Under the proposed ordinance, employers may require employees to be employed for 180 days before they are eligible to use the accrued paid sick leave benefit. Thus, short-term employees may accrue, but be ineligible to use, paid sick leave.

Additionally, employers with unionized workforces will not be affected by the ordinance until the expiration of the collective bargaining agreement in place on the effective date of the ordinance. And even then, employers and their unionized employees may explicitly waive the paid sick leave requirements via future collective bargaining agreements.

Other Requirements and Parting Recommendations

Employers that already provide paid sick leave, particularly in the amount that would satisfy the proposed/impending ordinance requirements, will be ahead of the curve. Those employers, like all covered employers, also will be required to comply with the ordinance’s notice mandate, which, similar to the recently enacted Chicago Minimum Wage Ordinance, will require employers to: (1) post in a conspicuous place a notice informing employees of their rights to paid sick leave, and (2) provide a notice of rights with employees’ first paychecks following the ordinance taking effect.

Employers who do not already provide qualifying paid sick leave to employees will need to adopt a paid sick leave policy that complies with the ordinance’s requirements, prior to its effective date.

 

Sick Leave Laws

March 25th, 2014

New York City implemented a new law requiring most employers doing business in the city to provide paid sick leave to employees. The law (as recently amended to include private employers with 5 or more employees) requires employers to provide up to 40 hours of paid sick time in each calendar year. Employees who work at least 80 hours in a calendar year in New York City shall accumulate paid sick time at a rate of 1 hour for every 30 hours worked. Among other requirements, the law permits employees to carry over up to 40 hours of unused sick leave from one calendar year to the next. However, an employee may not use more than 40 hours of paid sick time in a calendar year. Additionally, the law does not require payout of accumulated sick time upon separation of employment unless otherwise required under the employer’s policy or practice. The law goes into effect on April 1, 2014. Employers must provide written notice to employees of their rights under the law at the time of hire and for existing employees, within 30 days of the law’s implementation.

New York City is not the first, and likely will not be the last, jurisdiction to implement paid sick time. Washington D.C.; San Francisco, California; Portland, Oregon; Jersey City, New Jersey; and Newark, New Jersey all have passed similar laws or ordinances requiring private employers to provide some level of paid sick time to employees. Employers with operations in these cities should ensure that they comply with the requirements of these laws and that their sick leave policies are up-to-date.