Loyola University Chicago School of Law, JD 2020
The City of Chicago enacted the Paid Sick Leave Ordinance to protect employees who work within the city limits. Effective July 1, 2017, the Ordinance requires employers who operate or conduct business in the City of Chicago to provide Paid Sick Leave to eligible employees. While there are some limitations about who is a “Covered Employee,” the Ordinance sets a precedent for worker’s rights. Only eight states have enacted Paid Sick Leaves Laws. Illinois is not one of those states; however the City of Chicago may be moving Illinois workers one step closer to mandatory paid sick leave.
How Do Americans in the Public and Private Sectors Receive Paid Sick Leave?
After 80,000 Americans died of the flu last year, the Centers for Disease Control warned that all Americans over the age of six months should receive a flu shot. On average, an uncomplicated flu infection can last for three to seven days, but a cough and weakness or fatigue can last for as long as two weeks. While a flu shot may protect against some strands of the virus, many Americans may find themselves taking more sick days to recover from the flu. Therefore, employers, especially in the private sector, need to be vigilant that their paid sick leave policies align with state laws.
In 2016, President Obama issued an Executive Order granting paid sick leave for federal employees; however, no such federal law protects private sector employees. Therefore, employers, especially in the private sector, need to be aware of state paid leave laws. Since 2011, eight states, including Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, Washington D.C., Rhode Island, and Washington, have enacted Paid Sick Leave laws, which require employers to provide employees with sick leave. Yet, the definition of “an employee,” the definition of sick leave, and the amount of pay varies from state to state.
Maryland became the eighth state to enact a Paid Sick Leave law. Effective February 11, 2018, the Maryland Healthy Working Families Act requires all businesses with at least 15 employees to provide employees with “earned sick and safe leave paid at employee’s regular rate of pay.” This translates to up to five days of paid sick or safe leave per year for personal physical or mental conditions, like the flu, caring for a sick relative, maternity/paternity leave, or recovery time for domestic violence or sexual assault.
Yet, Maryland’s law is not all encompassing. Employees who are under the age of 18, work in agriculture, work less than 12 hours a week, are directly employed by a temporary employment agency, work in real estate, work in construction and waive this requirement, or are health service providers who can accept or reject shifts are excluded from receiving the benefit.
What has been Illinois’s Response to Paid Sick Leave?
Unlike Maryland, Illinois is one of the 42 states that does not require employers to provide paid or unpaid sick leave, however, the City of Chicago has addressed the issue of paid sick leave through its Paid Sick Leave Ordinance. The Ordinance, which went into effect on July 1, 2017, requires every employer in Chicago to provide at least some paid time off to employees for sick leave purposes. It applies to “Covered Employees”, which the Ordinance defines as any employee who completes at least two hours of work for an employer while in the boundaries of the City of Chicago within a two-week period.
Under the Chicago Safe Harbor Rule, MW 3.01, the Paid Sick Leave section of the Paid Sick Leave Ordinance requires employers to comply with three main categories:
- Accrual/grant of hours of paid sick leave,
- Carryover of paid sick leave from one year to the next, and
- Usage of paid sick leave.
A Covered Employee begins accruing paid sick leave on the first calendar day after the first day of employment. However, a Covered Employee may only apply hours worked within the Chicago city limits towards their accrual. For example, Covered Employees, who are salaried and work 40 hours a week, accrue one hour of Paid Sick Leave for each week of employment. Employers may choose to immediately grant Covered Employees Paid Sick Leave or to make Paid Sick Leave available as Covered Employees accrue hours.
A Covered Employee must be allowed to use paid sick leave no later than 180 days after he or she began working for the employer so long as the employee is working at least 80 hours for an employer within any 120-day period. A Covered Employee may use sick leave an hour at a time, unless the employer specifies otherwise, and may use a maximum of 40 hours of accrued regular paid sick leave during a benefit year. If an employer grants Covered Employees more paid sick leave than the Ordinance requires, the employer governs how the Covered Employee may use the leave.
How Does the Ordinance Impact the Policies of Employers in the City of Chicago?
The Paid Sick Leave Ordinance requires that employers maintain information about Covered Employees for at least 5 years. Information includes the dates that each Covered Employee is eligible to use Paid Sick Leave, the number of hours of Paid Sick Leave accrued by or awarded to each Covered Employee, the dates and hours that each Covered Employee actually used the Paid Sick Leave, and the date of payment for each wage payment. Employers must make records available for inspection upon required by Chicago’s Business Affairs and Consumer Protection.
Employers must pay employees for paid sick leave no later than the next regular payroll period, after a Covered Employee uses the leave. However, an employer does not have to pay an accrued or unused paid sick leave upon a Covered Employee’s termination, resignation, or retirement.
How can Employees Report Non-Compliance?
An employee who should have been granted paid sick leave by the Ordinance but does not receive it may file a complaint with the City of Chicago or call 311, a call center for non-emergency City Services. However, the Paid Sick Leave Ordinance places a statute of limitations on employees who are denied Paid Sick Leave. If a Covered Employee files a complaint more than three (3) years after they were improperly denied Paid Sick Leave, the courts may refuse to hear the complaint.
What Does this Mean for the Rest of Illinois?
While Illinois has not adopted any legislation similar to the City of Chicago Ordinance, Cook County adopted the Cook County Earned Sick Leave Ordinance on July 1, 2018, which provides similar protection to Covered Employees. Therefore, as Covered Employees in Cook County brace for what may be one of the worse flu seasons on record, they can breathe a little easier knowing that they are entitled to Paid Sick Leave under the City of Chicago Paid Sick Leave Ordinance and the Cook County Earned Sick Leave Ordinance.