May 25, 2017
Will your paid time off policy satisfy the requirements of Chicago/Cook County’s paid sick leave laws?
The City of Chicago and Cook County’s paid sick leave ordinances go into effect on July 1, 2017. About a dozen communities in Cook County have exercised their home rule rights to opt out of the paid sick leave ordinance including Arlington Heights, Barrington, Elk Grove Village, Northbrook, Oak Brook and Palatine, but private sector employers in the other over 100 municipalities still must comply.
Cook County posted draft notices and regulations on its website at www.cookcounty.il.org but Chicago has not yet provided its notice. Both ordinances require employers to post their notices and distribute them to employees at their first pay period after July 1 or their first date of employment if later. You are a covered employer if you have a business location in Chicago or Cook County (other than in an opted-out municipality) or are licensed by Chicago. If your employees provide compensable work for two hours in a two-week period in Chicago or Cook County (again, other than in an opted-out municipality), they will start to accrue paid sick time at a rate of one hour for every 40 hours worked. This includes part-time, seasonal and temporary employees who may not have been covered by an employer’s existing paid time off policies.
Both Chicago and Cook County provide that employers may utilize their existing paid time off or sick leave policies if those policies comply with the required provisions of the ordinances. Employers are advised to carefully review their existing policies to see if they comply. If a policy substantially complies, the employer may need to incorporate minimal revisions for full compliance. A policy, for example, might require employees to give advance notice before taking a foreseeable absence. If the notice period is seven days or less, it could comply, but if the notice period is more than seven days it will need to be adjusted. A policy may require employees absent for three or more consecutive days to provide a release from a physician in order to return to work. The policy cannot, however, require certification, e.g., a doctor’s note, for absences that are less than three consecutive days. A policy that allows employees with unforeseen absences to give notice as soon as practicable by phone, email or text message, and allows the notice to be given by someone other than the employee will likely be acceptable. Employers may have work to do but it might not be quite as much as they fear.
It is important for employers to firm up and put into writing when the accrued sick time can be used and in what increments. The longest wait time that will be permitted is 180 days and the largest increment is four hours. If not in writing, covered employees will be able to use the time as soon as it is available and in one-hour increments.
Finally, employers should decide how they will track the accrued sick time and determine how it can be carried over. Under the ordinances, covered employees can use up to 40 hours of unrestricted sick leave in a 12-month period and, if FMLA eligible, up to 40 hours of restricted FMLA sick leave. Employees can then carry over half of their accrued unrestricted sick leave up to 20 hours and, if FMLA eligible, can carry over up to an additional 40 hours for restricted FMLA sick leave.
To avoid the administrative burden of tracking this paid sick time, employers may choose to modify their existing policies to frontload the new leave time. For example, an employer frontloading 60 hours would give the employee 40 hours of unrestricted time plus 20 hours of carry over. If an employer was using a calendar year, it could prorate this frontloading for 2017. If an employer prefers tracking the accrued sick time, we suggest that the time be tracked in hours rather than days because the time cannot be fractionally accrued. If it has been an employer’s practice to accrue time in days, we suggest the employer convert the accrual to hours to avoid issues with fractions.
The cost of not complying with the ordinances can be great. Both ordinances have private rights of action that provide for treble damages, interest, costs and reasonable attorney’s fees. This makes these cases very attractive to the plaintiffs’ bar.
Contact one of our employment law attorneys to review your policy for modifications that will help you reach full compliance.
This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.
Client alert authored by: Jeralyn H. Baran, Principal
This alert originally appeared in the May 2017 Employment Focus newsletter.