Seyfarth Synopsis: Illinois joined the exclusive club of now three states that require employers to offer paid leave for any reason when Governor J.B. Pritzker signed the Paid Leave for Workers Act last week. The Act takes effect on January 1, 2024. Illinois employees will be entitled to earn and use at least 40 hours of paid leave during a twelve-month period. Leave must accrue at a rate of at least one hour for every 40 hours worked.
Here’s what you need to know.
- Who’s Invited To The Paid Leave Party?
So how many employees does it take to get a day off? The Act requires employers with at least one employee to provide paid leave. “Employee” in the Act has the same application and meaning as that provided in the Illinois Wage Payment and Collection Act and excludes independent contractors as well as certain railroad and student or other individuals employed less than full time or on a short-term basis for colleges and universities. Paid leave under this Act accrues at the rate of one hour of paid leave for every 40 hours worked up to a minimum of 40 hours of paid leave or such greater amount if the employer opts to provide more than 40 hours.
- Reasonable Minimum Increments: “Sorry, Charlie, You Can’t Take 15 Minutes Off To Grab A Latte. You Have To Take A Minimum Of 2 Hours.”
Employees themselves determine how much paid leave they need to use at a time, but employers may set a reasonable minimum increment for the use of paid leave not to exceed two hours per day – unless an employee’s scheduled workday is less than 2 hours per day, then the employee’s scheduled workday shall be used to determine the amount of paid leave.
- To Bank Or Not To Bank, That Is The Question
Employees are entitled to begin using paid leave 90 days following commencement of their employment or 90 days following the effective date of the Act (January 1, 2024), whichever is later. Employers that provide the minimum number of hours of paid leave to an employee on the first day of employment or the first day of the 12-month period are not required to carryover paid leave and can require employees to use all paid leave prior to the end of the benefit period or forfeit the unused paid leave.
Paid leave may not be charged or credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit. The Act itself does not require that any bank of paid leave be paid out to employees upon separation or at the end of the benefit year, although employers should ensure that their Handbooks and policies do not otherwise provide for such a payment upon separation if that is not the employer’s intention. For example, if the paid leave under this Act is credited to an employee’s paid time off bank or employee vacation account then any unused paid leave shall be paid to the employee upon separation to the same extent as vacation time under existing Illinois law or otherwise.
- No Notice, No Reason, No Problem? (For Employees, At Least…)
Employees can use their accrued paid leave “for any reason of the employee’s choosing” as long as the paid leave is taken in accordance with the provisions of this Act. An employee is not required to provide an employer a reason for the leave and may not be required to provide documentation or certification as proof or in support of the leave. Doing yoga with your dog counts. Monday brunch counts. Watching cat videos counts. Anything counts.
Employees have to request leave orally or in writing in accordance with their employer’s reasonable paid leave policy notification requirements. Requirements may include:
- Seven calendar days’ notice before the date the leave will be given if the leave is foreseeable.
- Notice as soon as is practicable if leave is not foreseeable, procedures for the same which must be outlined in a written policy.
- Employers must provide employees with written notice of paid leave policy notification requirements within five calendar days of any change to the employer’s reasonable paid leave policy notification requirements.
- Employers cannot require, as a condition of providing paid leave under this Act, that the employee search for or find a replacement worker to cover the hours during which the employee takes paid leave.
Given the fact that employers cannot require employees to provide a reason for their leave, it remains to be seen how effectively employers will be able to enforce the seven calendar day notice requirement if an employee simply calls in to work at the eleventh hour saying they need to be off for a reason that was not foreseeable or some other self-defined “emergency.”
- Documenting The Downtime
And wait, there’s more! Employers must provide written notice of their employees’ right to paid leave under the law. The notice should include the amount of leave that the employee is entitled to, the terms and conditions of the leave, and the employee’s right to file a complaint if their employer does not comply with the law. Employers must also maintain record documenting their compliance with the Act, including the amount of paid leave provided to each employee, the purposes for which leave was taken, and any notices provided to employees. These records must be kept for at least three years.
- Retaliation Roulette: The Risks Employers Take by Ignoring Paid Leave Rights
The Act prohibits retaliation against employees who exercise (or even “attempt” to exercise) their rights under the Act, opposing a practice an employee believes violates the Act, or even supporting another employee in exercising their rights under the Act.
Penalties and fines for violations are significant, including damages in the form of the actual underpayment, compensatory damages, a penalty of up to $1,000 (but not less than $500), reasonable attorney’s fees, reasonable expert witness fees, and other costs of the action. Employers who violate the Act shall also be subject to a civil penalty of $2,500 for each separate offense.
- Take A Break And Don’t Get Left Behind (Legally, That Is)
If your Company already offers a comparable amount of paid leave to employees that meets the Act’s requirement, it likely does not need to provide additional paid leave. But the Act implicates policies regarding leave accrual and usage, employee requests for leave, record keeping to support employee’s use of paid leave, notice, the applicable rate of pay for paid leave, and pay for accrued leave at the time of separation. So, employers may want to give those a fresh look. And if your Company does not offer paid leave, it will likely need to do so and prepare a policy on the same.