Illinois employers should be aware of four new leave laws that may require revisions to leave policies and procedures:
More information regarding each of these laws can be found below.
To which employers and employees does the Act apply?
The act applies to Illinois employers who provide sick leave benefits through an employer plan.
What does the Act require?
If an employer has an existing sick leave policy, the employer must allow employees to use their accrued, available sick leave for absences necessitated by the illness, injury, or medical appointment of certain family members.
Does the Act require employers to provide sick leave?
No. An employer that does not already provide sick leave is not required by the Act to adopt a sick leave policy.
What if my company has a paid time off (PTO) policy that already allows employees to use time for these types of family leave absences?
Employers whose existing PTO policies already permit employees to use at least half of their yearly accrued PTO for reasons relating to a family member’s illness, injury, or medical appointment are not required to modify their policies, so long as employees are allowed to use PTO for family leave reasons on the same terms upon which employees are able to use PTO for the employee’s own illness or injury.
What if my company provides paid short or long term disability benefits?
An employer that provides benefits under an employer plan such as a short-term disability benefits plan or a long-term disability benefits plan is not required to allow employees to use such benefits for absences relating to the illness or injury of family members.
What family members are covered?
Leave must be permitted for absences related to the illness, injury or medical appointment of an employee’s child, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.
May the employer limit how much sick leave an employee may use for a family member’s illness, injury, or medical appointment?
Yes. Employers may limit the use of sick leave for family leave purposes to half of an employee’s annual accrual. For example, an employee who accrues 40 hours of sick leave each year may be limited to using 20 hours of such time for family leave purposes.
May an employer require notice for use of time off for family leave purposes?
Yes. An employer may require that leave for family purposes be subject to the same verification or notice that is for required for leave due to the employee’s own illness pursuant to the employer’s existing policy. For example, if an employer’s policy requires three days’ notice prior to an employee taking time off for a medical appointment, the employer can require the same notice period for time off for the medical appointment of an employee’s family member.
Is an employer obligated to grant a request for time off for family leave purposes?
Not necessarily. Use of leave under an existing leave policy for a family leave purpose is subject to the same terms and conditions as other requests for leave. Thus, for example, if under the employer’s policy a leave request is subject to employer approval based on business needs, a request for leave for family leave purposes may be denied or limited if it otherwise would have been denied or limited in light of business needs. However, a request for leave may not be denied simply because the reason for the leave request is a family leave reason as opposed to for the employee’s own illness or some other reason. In addition, keep in mind that other laws (such as the FMLA) may, if they apply, require that the leave be granted.
May an employer provide greater benefits than the Act requires?
Yes. An employer may provide leave benefits that exceed the requirements of the Employee Sick Leave Act, such as pursuant to a policy, contract or collective bargaining agreement
What if an employer is subject to a contract or another law related to sick leave?
The rights and remedies of the Employee Sick Leave Act are in addition to those provided by contract or by another law (e.g., the Chicago and Cook County ordinances discussed below).
Does the Act increase the maximum amount of leave required under the federal Family and Medical Leave Act (FMLA)?
No. Family leave taken pursuant to an employer’s sick leave (or PTO) policy that qualifies for FMLA protection can run concurrently with FMLA leave.
How will this Act be administered and enforced?
The Illinois Department of Labor is likely to adopt regulations relating to the Act. Employees may file a complaint with the Illinois Department of Labor to enforce the Act; however, there are currently no provisions for fines or penalties.
Are there non-discrimination and/or anti-retaliation provisions in the law?
Yes. Employers may not discriminate or retaliate against an employee who uses or attempts to use personal sick leave benefits for a family leave reason, alleges a violation of this Act, cooperates in an investigation or prosecution of an alleged violation of this Act, or opposes any policy or practice prohibited by this Act. Discrimination and retaliation include denying an employee the right to use personal sick leave benefits in accordance with the Act, or discharging, threatening to discharge, demoting, or suspending an employee who uses or attempts to use personal sick leave benefits for a family leave reason.
Are there posting and notice requirements?
Not at this time. However, even without a posting or notice requirement, employers should ensure that their HR/benefits/leave administrators and supervisors are aware of the new law. Further, employers with written leave policies should revise those policies in accordance with the Act, such as to reflect employees’ right to use sick leave for family leave purposes.
To which employers and employees does the Act apply?
Eligible employees of public and private Illinois employers with more than 50 employees. An employee is eligible for the leave after 1,250 hours of service with the employer during the prior 12 month period.
How is “bereavement leave” defined?
Bereavement leave is defined as time to either attend a funeral or alternative to a funeral, make necessary arrangements, or grieve the death of a child.
How is “child” defined?
The Act defines a child as an employee’s biological, adopted, or foster son or daughter who is a child, a stepchild, a legal ward, or a child of a person standing in loco parentis. The Act does not specify that the child must be under the age of 18.
Does an eligible employee have a certain amount of time to take child bereavement leave?
Yes. Eligible employees must complete leave within 60 days of receiving notice of the death of the child. However, the Act does not specify whether employees must take leave continuously or may instead take leave on an intermittent basis.
Does an eligible employee need to give notice before taking child bereavement leave?
Yes. If it is reasonable and practicable, eligible employees must provide employers with at least 48 hours’ notice before taking bereavement leave.
May an employer require that an eligible employee provide documentation to support the leave?
Yes. An employer may require an employee to provide reasonable documentation to support the need for child bereavement leave. Reasonable documentation may include a death certificate, a published obituary, or written verification of death burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.
Is there a limit under the Act as to how much child bereavement leave an employee may take in a year period if he or she loses more than one child?
Yes. An eligible employee who experiences the death of more than one child during a 12 month period is entitled to take a total of up to six weeks of bereavement leave during the 12 month period.
Is an employee eligible for child bereavement leave in addition to leave allowed under the FMLA?
No. Child bereavement leave may not be taken in addition to unpaid leave under the FMLA, and may not exceed unpaid leave time under the FMLA.
If an employee is entitled to take paid or unpaid leave pursuant to another law, collective bargaining agreement, or other employment benefit program or plan, can the employee substitute such leave for leave under this Act?
Yes. An employee eligible for leave under this Act may substitute any period of leave under the Act for paid or unpaid leave pursuant to another law, collective bargaining agreement, or other employment benefit program or plan (including family, medical, sick, annual, personal, or similar leave). For example, following the death of a child, an employee may elect to take time off pursuant to an existing PTO policy rather than take unpaid leave under the Act.
How will this law be administered and enforced?
The Illinois Department of Labor is authorized to adopt rules and conduct investigations for purposes of administering and enforcing the Act. An employee may file a complaint with the Illinois Department of Labor or a circuit court civil action to enforce the Act within 60 days of the last alleged violation. Employers who violate this Act (or any regulations or rules that may be adopted under the Act) face civil penalties of up to $500 per employee for the first offense and up to $1000 for each subsequent offense, and may be ordered to pay lost wages and other damages.
What specific employer practices are unlawful under the Act?
An employer may not take adverse action against an employee who exercises rights or attempts to exercise rights under the Act, opposes practices he or she believes to be in violation of the Act, or supports the exercise of rights of another under this Act. Exercising rights under the Act includes filing a complaint, providing any information in connection with any inquiry or proceeding relating to any right provided under the Act, or testifying (or agreeing to testify) in any inquiry or proceeding relating to any right provided under the Act.
Are there posting and notice requirements?
Not at this time. However, even without a posting or notice requirement, employers should ensure that their HR/benefits/leave administrators and supervisors are aware of the new law.
This Chicago Paid Sick Leave Ordinance was the subject of a prior Bryan Cave Alert; to access this Alert, click here.
The Cook County Earned Sick Leave Ordinance essentially mirrors the Chicago Paid Sick Leave Ordinance, expanding the right to earn up to 40 hours of paid sick time per year (and to carry over a portion of that sick time to the next year) to more than 400,000 employees in the Cook County suburbs.
At least one suburb, Barrington, has passed an ordinance providing that employers within the Village are not subject to the Cook County Earned Sick Leave Ordinance. The validity of such exclusions remains an open question.
For questions or further information on related to any of these new laws, please speak to your Bryan Cave contact or a member of our Labor & Employment Client Service Group.