A reminder to all employers with any employees who work in Chicago or elsewhere in Cook County, Illinois: ordinances mandating that you provide paid sick leave to employees who work in Chicago or Cook County take effect July 1, 2017.
As we previously reported here, under the Chicago Paid Sick Leave Ordinance (and the almost identical Cook County Earned Sick Leave Ordinance), employers must begin awarding every employee who works in Chicago or Cook County one hour of paid sick leave for every 40 hours worked, up to at least 40 hours of paid sick leave per year (plus up to at least 20 unused rollover hours from the previous year). Nearly any employee who works at least 80 hours within any 120-day period in either jurisdiction qualifies, but employers may require the employee to wait up to 180 days after starting employment before they may use accrued paid sick leave. Employers can avoid the carryover and accrual requirements by “frontloading” their employees with equal or greater leave at the start of each calendar or benefit year.
Recently released interpretative rules from the City and County have added the following clarifications:
- According to the City’s rules, “[i]n the case of a conflict between the [City’s] Ordinance and the Cook County Earned Sick Leave Ordinance, the [City’s] Ordinance shall prevail within the City.”
- After the first year of employment, an employee may use a maximum of 60 hours of paid sick leave (unless the employer has a more generous policy)
- An employee may use paid sick leave in one-hour increments, unless the employer establishes and disseminates a written minimum-use policy
- An employer is not required to allow paid sick leave use while the employee is on disciplinary leave
- Paid sick leave must be paid no later than the next regular payroll period beginning after the leave was used
- The following employees are not covered under either ordinance:
- Employees working in construction covered by a collective bargaining agreement (“CBA”)
- Employees covered by a CBA entered into before July 1, 2017
- Employees covered by a CBA entered into on or after July 1, 2017, and that explicitly waives their rights under the ordinance(s)
- Immigration status does not affect an employee’s rights under either ordinance
- A private right of action is possible under both ordinances
In addition, many of the rules complicate compliance by taking the ordinances in different directions. Some of the key differences are:
|Employer Notice Requirements|
|The employer must post a notice prepared by the City advising employees of their rights under the ordinance.
The employer must provide employees notice of their rights under the ordinance with the first paycheck issued after July 1, 2017.
|The employer must post a notice advising employees of their rights under the ordinance, which can be a model notice prepared by the County.
The employer must provide employees notice of their rights under the ordinance by the later of their date of coverage or the date of availability, and at least once per year thereafter.
|Employee Notice Requirements|
|If the need for leave is reasonably foreseeable, the employer may require up to seven days’ notice before leave is taken.||The employer may require “reasonable” notice for foreseeable leave.|
|Employees Not Covered|
|Employees under 18 years of age.
Employees in a subsidized temporary youth employment program or subsidized transitional employment program.
Probationary employees and “learners” pursuant to subsection 4(a)(2) and section 6 of the Illinois Minimum Wage Law.
Camp counselors subject to subsections 4(d) and 4(e) of the Illinois Minimum Wage Law.
|(All employees excluded by the County ordinance are also excluded by the City ordinance.)|
|Employers must maintain sufficient personnel and payroll records going back at least five years.||No requirement to retain any records unless named as a respondent to a claim filed under the Ordinance with the County Commission. However, employers will be presumed to maintain sufficient personnel and payroll records going back at least three years.|
|Earliest Use of Paid Sick Leave|
|An employee may begin using sick leave by the 180th day after his start of employment, unless the employer allows use before then.||An employee may begin using paid sick leave the first date upon which he has worked 80 hours within any 120-day period. If the employer chooses, however, it may establish a waiting period that prohibits use of paid sick leave until as late as the 180th day after the employee’s start of employment.|
|Accrual and Carryover|
|Only hours worked within Chicago count.
If the employee ends the year with an odd number of hours of paid sick leave, the number shall be rounded up to the next even number to calculate the number of hours for carryover.
An employee who is rehired by the same employer within 12 months of separation will maintain any previously accrued unused paid sick leave only at the discretion of the employer.
|Only hours worked within Cook County count.
If the employee’s number of carryover hours results in a fraction, that fraction should be rounded to the next whole number.
An employee who is rehired by the same employer after more than 120 days since the separation is considered to have commenced new employment, and will have to reestablish coverage.
|Recuperation as Acceptable Use of Leave|
|No mention of recuperation as a qualifying use in the Ordinance or rules.||Recuperation from medical care or treatment is a qualifying use.|
|Statute of Limitations for Administrative Claim|
|The employee has three years to file a complaint with the City after the disputed sick leave was not granted, although the City has discretion to accept a complaint filed after that time.||The employee has three years after the employee discovered the alleged violation to file a complaint with the County Commission.|
To the extent an employer has not yet done so, it should immediately:
- Confirm whether it is subject to the ordinance(s). Many political subdivisions of Cook County have opted out of the County ordinance.
- Evaluate whether its current policies sufficiently comply with the new ordinances and, if not, make changes to the policies, distribute those to employees, and obtain written proof that each employee has received the updated policies. Make sure that one policy addresses notice requirements for employees for both foreseeable and unforeseeable absences from work.
- Decide whether it will provide paid sick leave under the accrual or front-loading approach.
- Provide the required notice to employees.
- Post the required notices in the same places as it posts other employment law postings.
- Train supervisory, managerial, and human resources employees on the ordinances’ requirements.
Given the complexity of the ordinances and their interpretive rules, employers should contact experienced counsel for advice on navigating these significant new requirements.