United States: Cook County, Illinois Publishes Final Rules For Sick Leave Ordinance: Employers, Are You Ready?

On July 1, 2017, the Cook County Earned Sick Leave Ordinance goes into effect. The Ordinance (at the time of this writing) provides certain employees in approximately 2/3 of the Cook County's municipalities with paid sick time benefits.

Employers located in Cook County municipalities that have not opted out of the Ordinance should be prepared for implementing these benefits. Some of the highlights of the Ordinance and its implementing rules are as follows:

  • Employers with at least one covered employee and who have at least one place of business within Cook County are covered by the Ordinance, unless the location where the employee(s) work has lawfully opted out.
  • The Ordinance covers employees who work within Cook County for at least 2 hours within any two-week period, unless the employee meets one of the few exceptions for coverage.
  • The Ordinance is not limited to full-time employees, but also covers part-time, temporary, seasonal, occasional, or long-term employees, and covered existing, new, and re-hired employees.
  • Existing employees begin accruing Earned Sick Leave (ESL) immediately, and employees hired after July 1 will accrue ESL on the first calendar day that they become covered by the Ordinance.  In addition, employers can prohibit use of ESL until an employee has completed 180 days of employment with the employer (counting any time worked prior to July 1, 2017).
  • Employees earn one hour of ESL for every 40 hours worked, but do not earn fractional amounts of ESL (e.g., an employee who works 79 hours still only has one hour of ESL until one more hour is worked).
  • Employers can limit accrual of ESL to 40 hours per year.
  • An employee can carry over up one half of his/her accrued ESL into the following year, up to 20 hours, and if the employer is covered by the federal Family and Medical Leave Act (FMLA), the employee may carry over up to an additional 40 hours into the following year for FMLA purposes only.
  • Employers can avoid accrual and/or carry over by frontloading ESL to an amount that could be carried over and accrued by the employee.  If the employer is FMLA-covered, this means that the employer would have to frontload 100 hours, or 60 hours if the employer is not covered by the FMLA.
  • However, since the Ordinance permits restricting ESL usage to 40 hours, or 60 hours if 40 hours of "FMLA-restricted" is used, a substantial amount of this frontloaded amount is in fact unusable by an employee during the year.
  • In addition, the Ordinance does not require employers to pay out unused ESL upon termination or cash out ESL in lieu of use.
  • Generally, ESL can be used for (i) an employee's or his/her family member's injury or illness, or treatment or recuperation from illness or injury; (ii) time off due to closure of the business or the employee's child's school or place of care due to a public official's order or a health emergency; or (iii) time off if the employee or a family member is the victim of domestic violence, sexual violence or stalking.
  • However, "FMLA-restricted" time off under the Ordinance can be used for any FMLA-qualifying purposes, including time off for bonding with a child, meaning that in some circumstances, ESL can be used for parental leave as well as sick leave.
  • Employers may establish a reasonable minimum increment for ESL usage, of no greater than four hours, and the presumptive position is that ESL can be used in one hour minimum increments.
  • Employers may establish reasonable notice requirements for employees to use ESL under the Ordinance.
  • Finally, employers must post a notice advising employees of their rights under the Ordinance (a model notice is available on the Commission's website at https://www.cookcountyil.gov/service/earned-sick-leave-ordinance-0), must provide each employee notice of his/her rights no later than the date of coverage, and at least once per calendar year thereafter.

With less than a month until the Ordinance goes into effect, Employers with employees in Cook County should consult with legal counsel regarding compliance with the Ordinance.  Littler will be issuing more in-depth guidance on the Ordinance in the very near future.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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