As “Super Sick Monday” approaches, employers will review their sick leave policies and procedures to ensure that operations are not “sacked” by excessive absenteeism the day after the Super Bowl, and that an enforcement agency does not throw a flag on the play.  Because sometimes the best offense is a good defense, periodic policy review can help employers confirm, “It’s good!” to reach their goal of compliance.  Just as Bears fans are already looking to next season, employers with Illinois operations should look further afield to determine whether and how local (or possibly statewide) paid sick leave changes later in 2020 could affect them.

Chicago Paid Sick Leave Ordinance Coverage & Enforcement Changes

Currently, the Chicago Paid Sick Leave Ordinance applies to employers with at least one covered employee that either: (a) maintain a business facility in Chicago; or (b) are subject to one or more Chicago business license requirements. Effective July 1, 2020, however, it will apply to all employers with at least one covered employee, regardless of whether the employer has a Chicago worksite or is subject to business license requirements.  Covered employees must work at least 80 hours for an employer within any 120-day period, and perform at least two hours of work in any particular two-week period while physically present in Chicago. Notably, effective July 1, the ordinance will explicitly exclude from coverage the following individuals:

• An outside salesperson (regularly engaged in making sales or obtaining orders or contracts for services where most of such duties are performed away from the employer’s place of business);
• A member of a religious corporation or organization;
• A student at, and employed by, an accredited Illinois college or university;
• Motor carriers regulated by the U.S. Secretary of Transportation or the State of Illinois; and
• Certain camp counselors employed at a day camp.

Given that a “business facility” is no longer a threshold issue for coverage, the outside salesperson exclusion likely will be a welcome amendment for many employers, clarifying that these employees still are not covered by the law (although we note that Cook County’s Earned Sick Leave Ordinance does not contain a similar express exclusion).

In addition, the City has launched the Chicago Office of Labor Standards (OLS) to enforce the ordinance and its other labor laws, i.e. Chicago’s Minimum Wage Ordinance and the Fair Workweek Ordinance that will take effect on July 1, 2020. The OLS has been granted authority to process complaints, conduct investigations, mediate disputes, direct settlement proceedings, issue violations, and, if necessary, suspend or revoke business licenses. Before OLS, the Department of Business Affairs and Consumer Protection (BACP) handled enforcement. In 2019, BACP received 113 complaints about paid sick leave violations but did not have the resources to investigate those complaints. With the changing of the guard, and forthcoming broader employer coverage, employers should anticipate more robust enforcement in 2020.

Cook County Earned Sick Leave Ordinance Will Apply in More Municipalities

By the time Cook County’s Earned Sick Leave Ordinance took effect on July 1, 2017, over 80% of suburban municipalities voted to “opt out” of the law. These “opt out” jurisdictions decreed that the county ordinance did not apply to businesses or employers in their municipality.  Since then, five municipalities reversed course and withdrew their opt-outs: Western Springs (5/18/2018)¹; Northbrook (effective 1/1/2019)²; Wilmette (3/1/2019)³; Glenview (effective 7/1/2019)⁴; and, most recently, Lincolnwood (effective 7/1/2020).⁵  While opting out remains the majority approach, other municipalities might reconsider opting in via an ordinance or a ballot measure in this year’s election cycle.

Statewide Paid Sick & Safe Leave Could Come to Illinois

The Illinois Healthy Workplace Act, SB 471, seeks to create statewide paid sick leave obligations in 2020.  The bill passed the Illinois Senate on May 1, 2019, just before the summer recess.  Currently, it sits in the Rules Committee of the Illinois House of Representatives and may soon be set on the calendar for a third (and possibly, final) reading in the House.  As currently drafted, the law would apply to nearly all employers and employees performing any amount of work in Illinois. While it exempts bargaining-unit employees covered by a valid collective bargaining agreement on the law’s effective date, new or renegotiated agreements must contain a clear and unambiguous waiver of rights to be exempt. 

Under SB 471, covered employees could use 40 hours of paid sick leave per year. They would accrue one hour of paid sick leave for every 40 hours worked, up to 40 hours in a year. Accrued but unused time would carry over from year to year; the bill does not address whether employers can annually frontload 40 hours and avoid carryover obligations. Employees could use paid sick leave for reasons similar to those in Chicago and Cook County. However, what makes this bill unique is that it enables employees to use paid sick leave to visit a family member in jail or prison, or to attend the employee’s own or a family member’s appointment regarding court sentencing, probation, conditional discharge, parole, or mandatory supervised release requirements, or any other civil or criminal court hearing or trial. The bill would take effect immediately upon becoming a law. 

Some employers may lament that the statewide bill does not contain a provision to preempt local paid sick leave ordinances. Nor does it repeal Illinois’s kin care statute, the Illinois Employee Sick Leave Act.⁶ Therefore, if the state enacts this version of the bill, some employers might need to navigate three or four separate laws for paid sick leave compliance in Illinois. 

Next Steps

Employers with employees working in Chicago should ensure that their policy complies with the existing law and determine whether any policy revisions must occur to comply with the July 1 amendments. Additionally, employers should keep an eye out for updated FAQs, which the OLS should publish before July 1. Suburban employers in Cook County may consider reviewing their list of “opt out” jurisdictions to ensure they provide benefits where required. Finally, employers should monitor state legislation so they can quickly implement policies and procedures if the bill succeeds.