The ordinances require most employers to provide employees with up to 40 hours of paid sick leave a year, some or all of which may be carried over but not paid out.
Effective July 1, 2017, employers located in the City of Chicago, and the larger area of Cook County, must provide employees paid sick time. If a business or individual employs one person covered by either ordinance[1], then they are subject to the ordinance requirements. In order to obtain the right to paid sick leave, the employee does not need to work full time. In fact, if the eligible employee works 80 hours within one 120 day period, they are entitled to paid sick leave from their employer.
The ordinances set forth that an employee gains one hour of paid sick leave for every 40 hours worked. However, the paid sick leave is capped at 40 hours per year. After 180 days from the employee’s start date, or the effective date of the ordinances, he or she may begin to use their accrued time. If an employee does not use the paid sick time, the law allows 20 hours of sick time to be carried over into the next year, unless the employer is subject to the FMLA. If the employer is subject to the FMLA, the employee can carry over up to 40 hours of unused sick time into the next year. Either way, employers are not required to pay out unused but accrued paid sick time.
Finally, all new employees hired on or after July 1 must be provided with written notice of his or her right to paid sick time with their first paycheck. The posting does not satisfy the notice requirement, but an employee handbook with the policy will suffice.
Notice requirements are governed by both ordinances, and may impact previously enacted company policies.
One area where employers may want to exercise extra caution is in drafting notice requirements in their policies. Under the ordinances, an employer can require up to seven days notice for reasonably foreseeable basis for paid sick leave. However, notice for sick leave that is not reasonably foreseeable may be “as soon as practicable”. If the basis for leave is not reasonably foreseeable, the ordinances provide that phone, e-mail, or text message notifications are all expressly permitted. Employer’s management may need consulted regarding the notification provisions, as oftentimes company policy prohibits notification by text message.
An employer’s right to review evidence of the basis for sick leave is limited. An employer may only request documentation of the basis for sick leave if an employee is absent for more than three consecutive workdays. Even in those instances, the documentation must not specify the condition unless required by law.
Also, a employers must post a notice in a conspicuous place informing employees of their rights to paid sick leave under the applicable ordinance. However, this requirement does not apply to employers that may employ persons working within the boundaries of Cook County or the City of Chicago but do not maintain a physical location within those boundaries.
The stated circumstances under which an employee may request paid sick leave are broad.
The City of Chicago and the Cook County ordinances permit an employee to use paid sick leave in the event of the following circumstances:
- “he or she is ill or injured, or for the purpose of receiving medical care, treatment, diagnosis, or preventive medical care;
- a member of his or her family is ill or injured, or to care for a family member receiving medical care, treatment, diagnosis, or preventive medical care;
- he or she, or a member of his or her family, is the victim of domestic violence. . . ; or
- his or her place of business is closed by order of a public official due to a public health emergency, or he or she needs to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency.”
Employer compliance with the ordinances by their effective date this summer.
Compliance with ordinances governing mandatory sick leave is critical. Noncompliance may subject the employer to liability to the employee for treble damages, costs, and attorneys’ fees. Both ordinances are effective July 1, 2017[2]. Until then, employers have time to review their current policies with their legal counsel in order to analyze their position under the laws.
____________________________________________
[1] Employers of certain employees do not need to concern themselves with the new sick leave requirements. The following five employees are specifically excluded from the Chicago ordinance: agricultural employees, outside salespersons, members of religious corporations or organization, students at an Illinois college or university under FLSA and employees of motor carriers. Both the Cook County and Chicago ordinances also exclude construction workers subject to a CBA.
[2] Employers impacted only by the Cook County Earned Sick Leave Ordinance should stay abreast of municipal ordinances enacted by the village or city in which they are located. The village or city may, by its own ordinance, decide to relieve its business-constituents of any obligations under the Cook County Earned Sick Leave Ordinance.