The Second City Adopts Paid Sick Leave Following Burgeoning National Trend

18 July 2016 Labor & Employment Law Perspectives Blog
Authors: John L. Litchfield

Late last month, the Chicago City Council unanimously approved a new paid sick leave ordinance requiring virtually every employer in the city to provide at least some paid time off to employees for sick leave purposes. Cook County’s Board of Commissioners is expected to approve a similar ordinance later this year. Chicago is not forging any new paths by doing so — it is only the latest example of a nationwide trend to mandate that employers provide paid time off to employees to care for themselves or their families — a trend certain to continue and expand.

Although there is currently a patchwork of rules and regulations regarding paid sick leave across the country, Chicago’s ordinance is a fair representative of similar requirements in other states and municipalities. The ordinance, which will become effective on July 1, 2017, covers any employee based in and/or working inside Chicago’s city limits who works 80 or more hours within a 120-day period — essentially anyone taking home a paycheck on a regular basis. Employers must provide these workers the right to accrue and use up to five paid sick days (or 40 hours) per year, earned at a minimum rate of one hour for every 40 hours worked.

Further, workers must be allowed to roll over up to two and a half days (20 hours) of unused sick leave into the subsequent year — but employers can cap the total accrual amount at 40 hours, if they desire. Accrual of paid sick leave must begin on an employee’s first day of employment (or July 1, 2017, for existing employees — whichever is later), and accrual and use requirements are then measured from that date going forward. Employers may, however, restrict new employees’ use of paid sick leave until after they complete six full months of continuous employment.

Importantly, the Chicago ordinance does not require that employers create a separate paid sick leave scheme if they already maintain a general undifferentiated Paid Time Off (PTO) policy that meets or exceeds the required accrual rates. For example, if an employer maintains a PTO policy that provides accrual of PTO at a rate of two hours for every 40 hours worked, capping the total number of PTO days at 15, then the PTO policy exceeds the requirements. However, if PTO accrues at a rate slower than one hour for every 40 hours worked, the policy will need to be revised to meet the minimum requirements.

Sick leave may be used by employees to care for themselves or their families when they are sick, to receive medical care, including treatment, diagnosis, or preventive care, and if the employee or family member is the victim of domestic violence or sexual abuse. Employers must also give employees the ability to use their accrued sick time if the employer, or the employee’s children’s schools, are closed because of a public health emergency.

There are additional nuances to the law, some of which vary, depending on a particular workforce, including interplay with the Family and Medical Leave Act (FMLA) calculation of sick pay for tipped workers, and waiver of sick leave requirements in a collective bargaining agreement. Also, just as employers with PTO policies will want to ensure theirs is up to snuff in light of these new rules, employers without a PTO policy may want to consider adopting one to simplify their time-off benefit administration. As a result of these and other issues and trends across the country, employers should consult with counsel to ensure they are meeting or exceeding the minimum sick leave requirements in their places of work.

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