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Employee Sick Leave

—Erin E. O’Brien

In 2017, (a) an employer in Illinois who provides sick leave to an employee will be required to extend such sick leave to care for such employee’s Immediate Family Members (as defined below) pursuant to the Illinois Employee Sick Leave Act and (b) all employers in Chicago will be required to provide up to 5 days of paid sick leave for eligible employees pursuant to an amendment to the Chicago Minimum Wage and Paid Sick Leave Ordinance.

 (a)   Illinois Employee Sick Leave

Effective as of January 1, 2017, the Employee Sick Leave Act (the “Act”) permits an employee to use Personal Sick Leave Benefits for family care purposes. “Personal Sick Leave Benefits” is defined as time accrued and available to an employee to be used for absence from work due to an illness, injury, or medical appointment; however, Personal Sick Leave Benefits do not include absences from work for which compensation is provided through an employer’s benefit plan.

An employee may use Personal Sick Leave Benefits for absences due to an illness, injury or medical appointment of such employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent (collectively, “Immediate Family Members”) for reasonable periods of time as the employee’s attendance may be necessary, on the same terms upon which such employee is able to use Personal Sick Leave Benefits for such employee’s own illness, injury or medical appointment.

The Act does not define the maximum amount of time an employee may use Personal Sick Leave Benefits, however it allows employers to limit the use of Personal Sick Leave Benefits to “an amount not less than the personal sick leave that would be accrued during six months at the employee’s then current rate of entitlement”. In other words, employers may restrict employees from using more than half of his or her yearly sick leave benefits for the care of an employee’s Immediate Family Members. Additionally, the Act does not extend the maximum amount of leave to which an employee may be entitled under the Family and Medical Leave Act, as amended (“FMLA”).

Employers cannot (i) deny an employee the right to use Personal Sick Leave Benefits in accordance with the Act or (ii) discharge, or threaten to discharge, demote, suspend or in any manner discriminate against an employee for using Personal Sick Leave Benefits.

The Act does not require employers that already have paid time off policies that extend such leave to Immediate Family Members to modify existing policies.

(b)   Chicago Minimum Wage and Paid Sick Leave Ordinance

 Effective July 1, 2017, an amendment to the Chicago Minimum Wage and Paid Sick Leave Ordinance (the “Ordinance”) requires all Covered Employers in the City of Chicago to provide an Eligible Employee up to 5 days of paid sick leave in each 12-month period of such Eligible Employee’s employment.

Under the Ordinance, (i) a “Covered Employer” is defined as an employer that (A) maintains a business facility within the geographic boundaries of the City of Chicago or (B) is subject to the City’s licensing requirements and (ii) an “Eligible Employee” is any employee (A) who works at least 80 hours for a Covered Employer within any 120-day period and (B) who performs at least two hours of work for a Covered Employer in any two-week period while physically inside of the geographic boundaries of Chicago (“Minimum Hourly Requirement”). In calculating the Minimum Hourly Requirement, any compensated travel time qualifies towards the Minimum Hourly Requirement; however, uncompensated time spent commuting does not qualify.

An Eligible Employee of a Covered Employer accrues 1 hour of paid sick leave for every 40 hours worked; however, paid time off or paid holidays are not considered hours worked. Paid sick leave (i) accrues in 1 hour increments and (ii) begins to accrue on the first calendar day after an employee begins employment.

An Eligible Employee (i) may begin using paid sick leave no later than the 180th day following the beginning or his or her employment and (ii) may accrue a maximum of 40 hours of paid sick leave per 12-month period; provided, however, such Eligible Employee may carry over half or his or her unused accrued paid sick leave, up to a maximum of 20 hours. To the extent a Covered Employer is subject to the provisions of FMLA, an Eligible Employee may carry over up to 40 hours of unused accrued paid sick leave to use exclusively for leave under FMLA.

An Eligible Employee may use paid sick leave (i) for the Eligible Employee’s own illness, injury or medical care; (ii) to care for a Family Member who is ill, injured or receiving medical care; (iii) as a victim of domestic violence or a sex offense, (iv) if the Eligible Employee’s place of business is closed due to a public health emergency or (v) if the Eligible Employee needs to care for a child whose school or childcare location has been closed to due public health emergency. “Family Member” is defined as an Eligible Employee’s child, legal guardian, spouse, domestic partner, parent, spouse or domestic partner’s parent, sibling, grandparent, grandchild, or any other individual related by blood or whose close association with the Eligible Employee is the equivalent of a family relationship.

If paid sick leave is foreseeably foreseeable, a Covered Employer may require up to 7 days’ notice before paid sick leave is taken. If paid sick leave is unforeseeable, the Covered Employer may require the Eligible Employee to provide notice as soon as is practicable on the date such Eligible Employee intends to take paid sick leave.

To the extent an Eligible Employee is absent more than 3 consecutive work days, a Covered Employer may require certification that the absence qualified for paid sick leave. For absence due to (i) an Eligible Employee’s or Family Member’s illness, injury or receipt of medical care, documentation signed by a licensed healthcare provider satisfies the certification requirement and (ii) domestic violence or a sex offense, any evidence that supports the Eligible Employee’s claim, including a police report, a court document or a signed statement from an attorney, clergy member or a victim services advocate, satisfies the certification requirement.

The information in this article is for informational purposes only and does not constitute formal, legal advice.  It is important that any policy providing for paid time off and already is in place meet each requirement of the Act and Ordinance. Consult one of the attorneys of Roberts McGivney Zagotta LLC to make sure your employment handbooks and policies are up to date.