Chicago Paid Leave and Paid Sick and Safe Leave Ordinance
Chicago and Cook County currently have paid sick leave laws – a new law governing paid leave for any purpose is forthcoming. Since 2017, Chicago-covered employees may earn and accrue 40 hours of paid sick leave to care for themselves or a family member, if they work at least 80 hours within any 120-day period. In November 2023, the City Council of the City of Chicago passed the Chicago Paid Leave and Paid Sick and Safe Leave Ordinance (the “Ordinance”) which now requires covered employers (employing at least one (1) employee) to provide covered employees (employees working at least two hours of work in a particular two-week period in Chicago) 40 hours of paid sick leave (“Paid Sick Leave”) and an additional 40 hours of paid leave (“Paid Leave”) per year to be used for any purpose beginning January 1, 2024.
Accrual of an employee’s Paid Sick Leave and Paid Leave begins on the first calendar day after the commencement of the employee’s employment or January 1, 2024, whichever is later. For every 35 hours worked (reduced from the prior 2017 law requiring 40 hours worked), the employee accrues one hour of paid sick leave. No fractional accruals are permitted. Frontloading is permissible, if an employer chooses to immediately grant covered employees 40 hours of Paid Sick Leave and 40 hours of Paid leave on the first day of employment or the first day of the 12-month accrual period. Employees may use Paid Sick Leave and Paid Leave no later than on the 30th calendar day and 90th calendar day following commencement of the employee’s employment, respectively. The employee is entitled to use no more than 40 hours of each of Paid Sick Leave and Paid Leave per 12-month period, unless the employer sets a higher limit. At the end of the employee’s 12-month accrual period, the employee is permitted to carry over to the following 12-month period up to 16 hours of Paid Leave and 80 hours of Paid Sick Leave. However, if the employer frontloads the required Paid Sick and Paid Leaves, the employer is not required to carry over unused time.
While employers are permitted to provide reasonable policies around Paid Leave, an employee may use Paid Leave for any purpose and the employer may not require the employee to provide documentation or certification for the reasons needed to be away from work. “Reasonable policies” include requiring the employee to give no more than 7 days’ reasonable notice and/or require reasonable pre-approval from the employer for purposes of maintaining employer continuity of operations. Employees are permitted to determine how much Paid Leave/Paid Sick Leave the employee needs; provided, however, the employer may set a reasonable minimum increment requirement not to exceed four hours of Paid Leave per day or two hours of Paid Sick Leave per day.
Employers are required to post notice of the Ordinance in a conspicuous location at each facility located within the City of Chicago, provide notice of Paid Leave and Paid Sick Leave with the employee’s first paycheck and on an annual basis, and each time wages are paid provide written notification to the employee of the updated amount of Paid Leave and Paid Sick Leave available (the employer may choose a reasonable method for this, e.g. by pay stub or online system accessible to the employee to check this information).
This change to the Chicago Ordinance governing Paid Sick Leave and Paid Leave was set to go into effect on January 1, 2024. However, amendments to the law were proposed earlier this month which could delay the effective date of the new law by several months. Notwithstanding any delay in the Ordinance’s implementation date, as currently drafted, the Ordinance offers an unprecedented amount of paid leave for Chicago workers. Employers should ensure they are ready for these changes to take effect and update their written policies and procedures accordingly. Noncompliance with the Ordinance could result in liability for compensatory damages, three times the amount of leave owed or denied, attorney’s fees, costs, interest, and fines ranging from $1,000 to $3,000 for each separate offense. Each day that a violation continues constitutes a separate and distinct offense to which a separate fine will apply. For Paid Sick Leave a private right of action will be available to employees as of January 1, 2024. A private right of action for Paid Leave will not be available to employees until January 1, 2025.
Illinois Paid Leave for All Workers Act
In March 2023, Illinois Governor J.B. Pritzker signed Illinois SB 208 into law which mandated that effective January 1, 2024, covered employers must provide covered employees with paid leave up to 40 hours during a 12-month period. The Illinois Paid Leave for All Workers Act (the “Act”) specifically requires all employers that are not in municipalities with pre-existing paid sick leave or paid leave ordinances to provide up to 40 hours of paid leave that can be taken for any reason. Thus, employers who were already complying with local/municipal paid leave requirements, including paid sick leave, that were in effect before the implementation of the Act on January 1, 2024, are exempt from the Act’s requirements. If municipalities adopt or amend their paid leave or sick leave laws after January 1, 2024, employers must comply with those local laws provided the benefits, rights and remedies are equal to or greater than those under the Act.
All employees, no matter how much or how little they work, are eligible for paid leave under the Act. Employers may provide leave to employees via an accrual or frontloading method. An employee begins to earn paid leave hours, via frontloading (subject to certain notice requirements) or accrual, at the commencement of the employee’s employment with the employer or on January 1, 2024, whichever is later. If an employer requires employees to earn paid leave hours via accrual, an employee is entitled to accrue paid leave hours at the rate of one hour of paid leave for every 40 hours worked during a 12-month period up to a minimum of 40 hours of paid leave over the same 12-month period. An employer may choose to provide leave in smaller, proportional, increments, if the rate of benefit accrual is at least 1 hour of paid leave for every 40 hours worked. Employees exempt from the overtime requirements of the federal Fair Labor Standards Act are deemed to work 40 hours in each workweek for purposes of paid leave time accrual if that employee regularly works 40 or more hours in a workweek. If such an employee’s regular workweek is less than 40 hours, the employee’s paid leave time accrues based on the number of hours in their regular workweek. When taking leave, employees must be compensated at their regular rate of pay.
Employees may carry over any unused paid leave time from one 12-month period to the next; provided, however, the employer may restrict the ability to carry over more than 80 hours of unused paid leave. Employers who meet the frontloading requirements of the Act are not required to carry over unused paid leave for their employees.
An employee is entitled to begin using earned paid leave under the Act 90 calendar days after the commencement of employment or 90 days after January 1, 2024, whichever is later. The employer may not require the employee to provide a reason or documentation supporting the need for paid leave. An employee must be allowed to use any other leave benefits provided by the employer or state law before using paid leave earned under the Act.
An employer’s handbook or written paid leave policy must be consistent with the provisions of the Act. To the extent an employer imposes terms and conditions on an employee’s use of paid leave beyond the provisions of the Act, the employer must adopt a reasonable, written paid leave policy, made available in English and any additional language commonly spoken by the employer’s workforce. The employer may determine how an employee requests to use paid leave, consistent with the employer’s paid leave policy. Similar to the Chicago Ordinance, the employer may require the employee to request leave no more than 7 days in advance if the leave needed is foreseeable. If the time requested is unforeseeable, the employer may require notice as soon as is practicable. The employer may not deny an employee’s request to use paid leave even if the employee’s request does not meet an employer’s foreseeability requirements, except if the basis for the denial is disclosed to the employee, in writing, and the policy establishes certain limited circumstances in which paid leave may be denied based on the employer’s operational needs.
During the duration of the employee’s employment, the employer must provide an accounting of the employee’s unused balance of paid leave time on each paystub or form that the employer normally provides to the employee to notify them of wage payments and deductions from wages. Employers must separate their accounting and records related to paid leave under the Act from other existing and separate leave (e.g. vacation). If the two (or more) leaves offered by the employer are not separated, any unused paid leave time must be paid out upon the employee’s separation of employment to the same extent that vacation time is paid under the Illinois Wage Payment and Collection Act. If the employer does not provide any additional forms of leave or does not combine the multiple forms of leave together, then the employer is not required to pay out unused paid leave under the Act upon the employee’s separation of employment.
Noncompliance with the Act also imposes liability upon the employer to both the employee and the State of Illinois. The employee may be entitled to the total value of the earned paid leave hours owed, compensatory damages, a penalty of not less than $500.00, and not more than $1,000.00, and other equitable relief as deemed appropriate following an administrative hearing. In addition, a civil penalty of $2,500.00 per offense will be imposed upon the employer by the Illinois Department of Labor.
The Illinois Department of Labor is in the process of preparing guidance and other resources and materials to educate employees and assist employers with compliance. Proposed regulations interpreting the Act and frequently asked questions can be found on the Illinois Department of Labor website but should not be considered a substitute for legal advice.
Bereavement Leave Rights - Child Extended Bereavement Leave Act
Two groups of employees will be eligible for unpaid, job-protected bereavement rights beginning January 1, 2024: (1) parents who lose a child to suicide or homicide; and (2) family members who lose a loved one in a crime of violence.
The Child Extended Bereavement Leave Act (SB2034) (“CEBLA”) governs time away from work for the loss of a child. CEBLA applies to both small and large employers. The amount of the leave available to the employee is based on the employer’s size:
- A “small employer” – employing at least 50 employees but less than 250 employees on a full-time basis in Illinois – must offer 6 weeks of unpaid leave.
- A “large employer” – employing more than 250 employees on a full-time basis in Illinois – must offer 12 weeks of unpaid leave.
Employers with less than 50 employees may still be subject to offering leave to employees under the Family Bereavement Leave Act which requires up to 10 workdays of unpaid leave. Leave under CEBLA may be taken continuously or intermittently in increments of no less than 4 hours and must be completed within one year following the employee’s notification to the employer of the loss. The employee may substitute any period of other, available paid or unpaid leave (e.g. family, sick, personal leave) for the equivalent period of leave to which the employee is entitled under CEBLA. An employer may require reasonable, practical advance notice of the need to take leave as well as reasonable documentation. CEBLA entitles an employee to be restored to the position the employee held prior to leave or an equivalent position. Violations of CEBLA subject the employer to civil penalties for each employee: (1) for the first offense, no more than $500.00; (2) for the second or subsequent offenses, no more than $1,000.00. Other equitable relief may be awarded.
Bereavement Leave Rights – Victims Economic Security and Safety Act
The Victims Economic Security and Safety Act (HB2493) (“VESSA”) is amended effective January 1, 2024, to entitle employees who are victims of domestic violence, sexual violence, gender violence, stalking, or any crime of violence (or employees whose family members or household members are victims of such violence) to take unpaid leave from work to seek medical assistance, legal assistance, counseling, safety planning, temporary or permanent relocation and, as now amended, to make end of life arrangements, or grieve a family or household member killed in a crime of violence without penalty from the employer.
Employees were previously entitled to 12 workweeks of leave during any 12-month period but are now entitled to use a cumulative total of no more than two workweeks (10 workdays) to attend, make end-of-life arrangements, or grieve the loss of a family or household member killed in a crime of violence, which must be completed within 60 days after the date the employee receives notice of the death of the victim. The employee may still be eligible for additional time off from work for the additional, qualifying reasons described above.
Employers should review their bereavement policies to ensure compliance with these new laws effective January 1, 2024.
