Governor JB Pritzker has dedicated his administration to expanding the rights and protections of employees. Many of these changes place significant compliance requirements on employers, and being non-compliant risks hefty fines. In January 2023, the Family Bereavement Leave Act became effective and employers can expect the Paid Leave for All Workers Act to go into effect on January 1, 2024.
What do each of these Acts do?
Family Bereavement Leave Act
Background of the FBLA
With the Family Bereavement Leave Act (FBLA), Illinois has expanded upon the unpaid leave time provisions previously available in the Child Bereavement Leave Act.
Understanding the FBLA
What employers are covered?
The Act enforces requirements against all employers subject to the federal Family and Medical Leave Act (FMLA).
Which employees are covered?
All employees working with public and private employers with 50 or more employees who have also worked at least 1,250 hours in the prior 12-month period are covered by the FBLA.
What rights do employees receive?
Employees are entitled to a maximum of 10 working days of unpaid leave to grieve the death of a covered family member, attend the funeral of a covered family member or make arrangements necessitated by the death of a covered family member.
Under the FBLA, “covered family members” includes the employee’s child, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent and stepparent.
In addition, employees are entitled to take unpaid leave in the event of a:
- miscarriage
- unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure
- failed adoption match or adoption that is not finalized because it is contested by another party
- failed surrogacy agreement
- diagnosis that negatively impacts pregnancy or fertility
- stillbirth
Importantly, if more than one qualifying event occurs within a year, employees may take up to 6 weeks of bereavement leave during the 12-month period.
Unless an employer allows employees additional leave time, employees may not use this leave in addition to unpaid leave available under the FMLA or exceed unpaid leave time allowed under the FMLA.
What are employees required to do to use leave?
Employees must complete the leave within 60 days after the employee receives notice of the event.
Further, employees must give employers at least 48 hours’ notice before taking FBLA leave, unless the advance notice is not reasonable or practicable. If employers require it, employees must provide reasonable documentation, such as a death certificate or obituary, to support the request for FBLA leave.
Employers are not allowed to require an employee to disclose the specific event if it relates to a loss or negative diagnosis for pregnancy, surrogacy or adoption. However, a health care practitioner or an adoption or surrogacy organization may provide documentation or fill out a form provided by the IDOL.
Paid Leave for All Workers Act
More recently, Illinois enacted the Paid Leave for All Workers Act (the Paid Leave Act), making it the latest state to guarantee paid leave for workers. The Act goes into effect on January 1, 2024 and expands on paid sick leave ordinances required by Cook County and Chicago, while also specifically excluding employers subject to those ordinances from complying with the Paid Leave Act. While the Paid Leave Act incorporates some familiar language, the expanded scope also leads to questions for employers. The Chicago Fox Rothschild Labor and Employment team can assist employers with understanding and complying with the Paid Leave Act.
Background of the Paid Leave Act
Starting in January 2017, Cook County and Chicago began requiring that covered employers (those with at least one employee) provide certain employees with one hour of sick leave for every 40 hours worked. Both ordinances delineate specific circumstances wherein employees may use their time off. Namely, employees are entitled to use leave under these ordinances to care for themselves while sick, a covered family member’s illness, or issues related to domestic violence, sex offenses or trafficking.
While Cook County and Chicago cover a large swath of the population of the State of Illinois, the Paid Leave for All Workers Act introduces a new type of leave that covers workers that are beyond those boundaries and provides more expansive coverage to allow workers the “greatest amount of time off from work and employment security.”
Understanding the Paid Leave Act
Are all employers statewide covered?
No, but most employers are included. The Paid Leave Act covers individuals, partnerships, associations, corporations, limited liability companies, business trusts, employment and labor placement staffing agencies, or any person acting in the interests of an employer relating to employees, with at least one employee.
The Paid Leave Act also applies to the state of Illinois and units of local government, state and local governmental agencies and all political subdivisions of the state or units of local government.
Importantly, the Paid Leave Act does not apply to school districts, park districts, or employers covered by the Cook County or Chicago ordinances or any other local municipal or county ordinances in effect prior to January 1, 2024.
How does the Paid Leave Act interact with local ordinances?
The Paid Leave Act specifically excludes employers subject to municipal or county ordinances governing paid or sick leave, which are in effect as of January 1, 2024.
To date, that means employers that are subject to either the Cook County or Chicago sick leave ordinances are excluded. This also means that if a municipality or county amends or enacts a paid or sick leave ordinance after January 1, 2024, as long as the ordinance complies with the minimum requirements of the Paid Leave Act, then affected employers would remain subject to the local municipality’s ordinance and any additional requirements of the local ordinance.
Yet the Paid Leave Act operates as a catch-all for all employers. It demands that even employers located in certain municipalities or counties with enacted local ordinances yet are not subject to those local ordinances for various reasons, will by default be subject to the Paid Leave Act.
Are all employees statewide covered?
No, again, the Paid Leave Act provides a carve out for employees located in Cook County or Chicago, subject to those respective ordinances. Employees include any individual permitted to work for an employer in any occupation who is not an independent contractor. Specifically included in the definition of employees are domestic workers who are not independent contractors.
What employees are excluded from the Act?
As noted, employees covered by the Cook County and/or Chicago ordinances are excluded from coverage under the Paid Leave Act. The Paid Leave Act also excludes the following employees:
- Railroad employees
- Student workers working less than full-time or those considered as temporary workers for the college or university that the student attends
- Short-term workers employed for less than two consecutive quarters in a calendar year with higher education institutions and without expectations of returning to the same institution in the same service
- Employees covered by a collective bargaining agreement that is in effect on January 1, 2024
- Employees covered by a collective bargaining agreement that is in effect after January 1, 2024, if the requirements of the Act are waived explicitly in clear and unambiguous terms
- Employees in the construction industry with a collective bargaining agreement
- Employees of a national or international employer in the service of delivering, picking up and transporting documents, parcel and freights covered by a collective bargaining agreement
- Employees of a state agency with a collective bargaining agreement that is in effect on July 1, 2024
What is required by covered employers?
Each employer must do the following to comply with the Paid Leave Act:
- Provide a minimum of 40 hours, or the pro rata share based on the calendar, of paid leave time to covered employees
- Determine the 12-month period it will use to evaluate whether employees are properly receiving their share of hours
- Draft written notice of paid leave policy notification requirements for employees’ use or review any current policies related to notifying the employee
- Post any changes of the notification requirements within 5 calendar days of those changes
- Post a forthcoming poster prepared by the Illinois Department of Labor in a conspicuous location where employees customarily receive posted notices in a language responsive to the spoken languages of employees
- The Illinois Department of Labor poster must also be included in a written document, employee manual, or policy to be distributed at the start of an employee’s employment or by March 30, 2024, whichever is later in time
- Make and preserve three years of records documenting the hours worked by employees, the paid leave accrued by employees, the paid leave used by employees, and the remaining balance of paid leave of each employee
- Ensure that policies state that covered employees are not required to find coverage or search for a replacement when using the time off
- Set up a system to immediately respond to employees who request an accounting of their accrued time and used time
- Ensure that employees are not retaliated against for exercising or attempting to exercise rights under the Paid Leave Act, opposing practices which employees think are violations of the Paid Leave Act or supporting others in exercising rights under the Paid Leave Act
- Instruct managers and evaluators against implementing negative actions, including poor evaluations, lack of promotion opportunities, or disciplinary actions against employees for using time off
- Do not count the time used when accounting for points that result in a disciplinary action when applying a no-fault attendance policy
How does an employee gain paid time leave?
Employers can allow employees to accrue time. Employers must provide one hour of paid leave to employees for every 40 hours worked. Exempt employees should accrue time according to each employee’s regular workweek. Accrual begins when employees begin working with the employer or on the effective date of the Paid Leave Act, whichever is later.
Alternatively, employers may provide the paid leave up front to employees. The hours can be made available to the employee at the top of the employer’s chosen 12-month calendar period or on the employee’s first day worked. If hours are provided up front, employers are not required to allow employees to carryover paid leave to the next 12-month calendar period. Employers can also require that employees use each of the available 40 hours (or more, if provided by the employer) or forfeit the time.
What rules are in place when employees choose to use this time off?
This Paid Leave Act was primarily passed to allow employees to “maintain their health and well-being, care for their families, or use [leave] for any other reason of [an employee’s] choosing.” As such, an employee receives significant leniency in the use of the hours, with the ability to request the time off orally, or written, if required under the employer’s policies. Further, employees are not required to notify employers in advance to use the leave.
Importantly, employers cannot require documentation or certifications when this paid time off is requested. In fact, employees may use this time for any reason and at any time and may request to use this dedicated time before using any other type of leave. Yet, the Paid Leave Act allows for employers to require 7 calendar days’ notice from employees for time that is foreseeably necessary.
Employers must also pay employees at their regular rate of pay, or at least minimum wage according to the jurisdiction of the employee, e.g. if the employee receives commissions or tips.
Despite the limitations placed on employers, the Paid Leave Act allows for employers to set a reasonable minimum number of hours, not to exceed 2 hours, an employee must use at a single time when requesting this time off.
Of note, covered Illinois employees may not use this time until 90 days after starting employment with their employer or 90 days after the effective date of the Paid Leave Act, whichever is later.
What additional information should employers know about the Act?
The prohibitive restrictions are squarely placed on employers and the onus is on employers to know the ins and outs of the Paid Leave Act. Some things to consider are:
- Employees cannot waive their rights under the Paid Leave Act (absent an enforceable, agreed upon collective bargaining agreement with clear and unambiguous terms)
- Employees are not entitled to a payout of time off at the end of the 12-month period or at the end of employment, but employers’ actions must align with written employer policies
- For employees separated from employment for less than 12 months, employers must return any unused accrued time off and allow for the use of time off for each employee upon returning
- An employee using this time must remain on the employer’s health plan and be notified of any cost attributable to the employee
- There are special considerations for domestic workers
Are there consequences for violating the Paid Leave Act?
Yes. The Illinois Department of Labor enforces the Paid Leave Act, and therefore, is assigned to penalize employers for violating the Paid Leave Act. Under the Paid Leave Act, employers who violate the Paid Leave Act or applicable rules are subject to civil penalties of $2,500 for each violation. Be mindful that the Department of Labor has yet to release rules for the Paid Leave Act, so these additional restrictions and clarifications remain forthcoming. The Department of Labor may also investigate an employer at any time, which could lead to a referral to an Administrative Law Judge in a quasi-litigation setting.
Employees may also file claims against employers for violations of the Paid Leave Act. Employees have 3 years from the date of a violation to file a complaint with the Department of Labor. If employers fail to adhere to the Paid Leave Act, each affected employee is entitled to: 1) payment for actual underpayment; 2) compensatory damages; 3) additional penalties between $500 and $1000; and 4) reasonable attorney fees, expert witness fees, other costs, and any other equitable relief. Apart from the Department of Labor, the Illinois Attorney General also has the authority to enforce awards to claimants.
How to Respond
Given the extensive list of employer obligations for the two acts, in addition to the penalties, we strongly counsel that employers engage their attorneys to assist with the review of policies, draft notices and prepare template documents for recordkeeping purposes. For the Paid Leave for All Workers Act, employers should also review their scheduling policies to ensure all operational concerns are addressed, including having a designated back up plan for critical employees for holidays and other anticipated dates.
Read the Previous Installments:
A Year in Review for Illinois Employers: Obligations You May Have Missed
Illinois Employers Must Act to Comply With New Equitable Employment Laws
The Future of Restrictive Covenants in Illinois
The Illinois Supreme Court, BIPA Clarifications and What Employers Need to Know
Chicago Increases Sexual Harassment Protections for Employees
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