Cook County and the city of Chicago passed earned sick leave ordinances. Both Ordinances are substantially similar, becoming effective on July 1, 2017.
Under the Ordinances, eligible employees earn one hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours in a calendar year. Employees may carry over a maximum of 20 unused hours to the following calendar year. Employees covered by the federal Family and Medical Leave Act (“FMLA”) may carry over an additional 40 hours of unused paid sick leave to use exclusively during a leave of absence covered by the FMLA.
Please be aware that the Village of Barrington, Illinois passed a subsequent Village Ordinance opting out of the Cook County Ordinance, finding that the Cook County Ordinance “would place an undue burden on employers within the Village, given the current rights of employees available under Federal and State law.” Other Cook County municipalities may follow the Village of Barrington’s lead, and whether litigation will follow is an open question.
Neither the Chicago, nor the Cook County Ordinances address whether an employer may avoid the burden of tracking the accrual of leave by “frontloading” sick leave (i.e., crediting employees with the full 40 hours of leave at the beginning of the calendar year).
Employees may begin using paid sick leave on the 180th calendar day after hire. Employers may require employees to use paid sick leave in reasonable minimum increments, provided that a minimum increment does not exceed four hours per day.
An employee may use sick leave under the Ordinances when he or she: is ill or injured, or for purposes of receiving medical care; must care for a family member who is ill or injured, or receiving medical care; is a victim of domestic violence; or works at a place of business closed due to a public health emergency. A “family member” includes the employee’s: child, legal guardian or ward, spouse, domestic partner, parent, spouse’s or domestic partner’s parent, sibling, grandparent, grandchild, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
If the need for sick leave is reasonably foreseeable (i.e., a pre-scheduled medical appointment), an employer may require up to seven days advanced notice. If such need is not reasonably foreseeable, employers may require employees to provide notice as soon as practicable via phone, e-mail, or text message.
Employers covered by the Ordinances include all individuals and business entities that employ at least one covered employee. Under the Chicago Ordinance, employers must also (i) maintain a business within the geographical boundaries of the city of Chicago and/or (ii) be subject to Chicago license requirements. Both Ordinances define a “covered employee” as an employee who spends at least two hours of work in any two-week period in the respective jurisdiction (either the city of Chicago or Cook County). Compensated time spent travelling, such as making sales calls or deliveries (but not commuting time), is considered “work”. A covered employee becomes eligible for paid sick leave by working 80 hours in any 120-day period. Employees begin to earn paid sick leave upon either the first calendar day after the start of employment or July 1, 2017, whichever is later (but note, employees can be required to wait 180 calendar days to use any paid sick leave). Domestic workers, including those employed by employers with fewer than four employees, are covered by the Ordinances. Tipped employees must be paid the required minimum wage for sick leave.
Please note that nothing in the Ordinances affect the terms of a current collective bargaining agreement (“CBA”). However, for any CBA entered after July 1, 2017, the requirements of the Ordinances may be waived by the terms of the CBA, but only if the waiver is set forth in clear and unambiguous terms. The paid sick leave provisions of the Ordinances do not apply to employees in the construction industry who are covered by a CBA.
Be advised that employers are required to post at each facility where a covered worker is employed, a notice setting forth employee rights to paid sick leave. The Chicago Ordinance requires employers to provide employees with a notice of their rights under the ordinance with the first paycheck subject to the ordinance. The Cook County Ordinance requires employers to provide employees with a notice of their rights under the ordinance upon hire. The Cook County Commission on Human Rights has provided a form titled “Cook County Earned Sick Leave Ordinance Notice to Employees” for download on its website. (See https://www.cookcountyil.gov/agency/commission-human-rights-0), as well as 46 pages of Interpretative and Procedural Rules Governing the Cook County Earned Sick Leave Ordinance which was approved by the Commission on May 25, 2017.
Employers may not retaliate against employees for exercising their rights under the Ordinances. Further, employers may not consider paid sick time taken under the Ordinance when determining discipline or discharge. Employees may file a civil action for noncompliance with the Ordinances, and they may recover as damages three times the amount of unpaid sick leave denied or lost due to the violation, plus attorneys’ fees and costs.
The most obvious action item for an employer subject to these new Ordinances is to review and update existing employee handbook and other written employee policies and notices. A few additional action items to consider as compliance deadlines approach include:
· Train human resource personnel and supervisors on the new compliance obligations;
· Post approved Notice conspicuously in facilities that have covered employees in Chicago and Cook County;
· Update employee handbooks and internal written policies/procedures to reflect changes in the law;
· Update employee attendance and leave tracking systems to conform to the changes;
· If you have a multistate workforce, consider whether a single sick leave policy will apply to all employees or whether specific policies should be created for each jurisdiction with a sick leave requirement;
· Budget appropriately to account for additional pay that may be required to provide paid sick leave to employees; and
· Consider scheduling changes that may become necessary as more employees begin to take time off, some without advanced notice.
Holy & Schultz attorneys are ready to promptly assist employers with navigating these new employment law changes. We look forward to the opportunity to evaluate your existing company employee handbook, policies, procedures and notices. After our review, we will offer comprehensive recommendations for any changes to written materials, and supervisor training protocols. Please contact us today. We look forward to working with you and your company.
Disclaimer: The following is for informational purposes only. No statement, opinion or commentary is intended to provide legal advice to any specific person, organization or entity. Only a written attorney-client agreement will create an attorney-client relationship. Please contact Michael C. Holy or Carl M. Schultz to discuss all potential legal matters.