Comparison of Chicago Paid Sick Leave Ordinance and Cook County Earned Sick Leave Ordinance. June 2017

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Dulcie Cross
6 years ago
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1 Comparison of Chicago Paid Sick Leave Ordinance and Cook County Earned Sick Leave Ordinance June 2017

2 PRIVILEGED & CONFIDENTIAL Comparison 1 of Chicago Paid Sick Leave Ordinance (with Rules approved 6/28/17) and Ordinance (with Rules approved 5/25/17) 1 This comparison presumes employer is subject to FMLA; does not address exemptions that may apply such as for construction industry, those covered by collective bargaining agreement, etc.; and does not include all requirements of the ordinances. 1

3 Amount of Paid Sick Leave Chicago Paid Sick Leave Amount 40 hours per 12-month period for work performed within Chicago, subject to carryover rules. 40 hours per 12-month period, for work performed within Cook County, but not work performed in municipalities that have opted out, subject to carryover rules. Accrual Method Begins to accrue on first day of employment Begins to accrue on first day of employment Immediate Grant/ Front-Loading Methods Only accrues during hours worked within Chicago Salaried exempt employees accrue 1 hour per week worked up to cap, unless the salaried position is for an amount different than 40 hours worked per week, in which case the rate of accrual shall be 1 hour for every 40 hours worked. Non-exempt employees accrue 1 hour for each 40 hours worked, up to cap Does not accrue during use of any paid or unpaid leave Grant 40 hours within 180 days after hire date, and 60 hours at beginning of each subsequent year No tracking or carryover required if follow grant method (Rule MW 3.05) Employees allowed to use 40 hours for regular PSL use and 20 for FMLA use, or 20 hours for regular PSL use and 40 hours for FMLA use. (MW 3.05(b) (2)) Only accrues during hours worked within Cook County (but not if work is performed in a municipality that has opted out) Salaried exempt employees accrue 1 hour per week worked up to cap (unless work less than 40 hours, then accrual based on hours worked) Non-exempt employees accrue 1 hour for each 40 hours worked, up to cap Does not accrue during use of any paid or unpaid An employer may grant an employee at the beginning of the applicable 12-month period the maximum amount an employee could have accrued during the current period plus carryover from prior periods. This grant must be 40 hours of Ordinance- Restricted Earned Sick Leave in the first year, and then 60 hours of Ordinance-Restricted Earned Sick Leave plus 40 hours of FMLA-Restricted Earned Sick Leave in each subsequent year (see leave definitions below). 2 Applies to all employees who work at least 2 hours in any 2-week period within Chicago City limits and who work 80+ hours in any 120-day period. 3 Applies to all employees who work at least 2 hours in any 2-week period within Cook County, and who work 80+ hours in any 120-day period regardless of location. But Cook County Ordinance does not cover individuals who work within Chicago City limits or work performed for an employer located within a municipality in Cook County that has opted out of the statute. 2

4 Chicago Paid Sick Leave If the employer grants this amount, employer need not carry over any unused sick leave, and need not track accrual during the year. Section (C) An employer may similarly avoid having to carry over unused sick leave from one year to the next if it grants at least 20 hours of Ordinance-Restricted Earned Sick leave and at least 40 hours of FMLA- Restricted Earned Sick Leave at the beginning of the accrual period; however, the employee would still earn sick leave as he works. Carryover 4 Accrual Method Must allow employee to carry over half of unused Paid Sick Leave, up to a maximum of 20 hours ( regular use Paid Sick Leave ) and up to 40 hours Paid Sick Leave that may be used only for FMLA eligible purposes ( Paid Sick Leave for FMLA ). (Rule MW 3.07(b)), for a total maximum of 60 hours. If employee has odd number of hours, round up to even number and carry over half (Rule MW 3.06(c)). Must allow employee to carry over half of unused Earned Sick Leave, up to maximum of 20 hours ( Ordinance-Restricted Earned Sick Leave ) plus the remainder of accrued sick leave which is carried over as FMLA-Restricted Earned Sick Leave, up to 40 hours, for a total maximum of 60 hours. (The full ability to carry over 60 hours will only happen in an employee s second and subsequent years of employment.) Must round up and do not carry over fractions of an hour Example A: In Year 1, Mary earns 30 hours of Sick Leave and takes none. She carries over half, 15 hours as Ordinance-Restricted Earned Sick Leave and the remaining 15 hours as FMLA-Restricted Earned Sick Leave. In Year 2, Mary accrues an additional 40 hours and uses none, and now has 70 total accrued hours, 30 from Year 1 and 40 from Year 2. She can carry over ½ of these hours, 20 (½ of 70 is from Year 1 and 20 from Year 2, but the carryover cap is 20 hours), as 4 For employers not subject to the FMLA, the carryover rules are much more straight forward. Under both ordinances, an employee may carryover ½ of any accrued but unused Paid Sick Leave into the following year, up to a maximum carryover of 20 hours. MW 3.06; Section (A). 3

5 Chicago Paid Sick Leave Ordinance-Restricted Earned Sick Leave. Mary also carries over 40 hours as FMLA-Restricted Earned Sick Leave (Mary s remaining hours are 50 (70 accrued 20 designated as Ordinance-Restricted = 50), but an employer may cap FMLA carryover to 40 hours). If employee s leave qualifies as both Ordinance- Restricted Earned Sick Leave and FMLA-Restricted Earned Leave, employee may choose whether the Earned Sick Leave he or she is taking should be considered Ordinance Sick Leave or FMLA Sick Leave. An employer may choose to allow the employee to take either FMLA-Restricted Earned Leave or Ordinance-Restricted Earned Sick Leave for either kind of absence and then does not need to track. (Section (D)) Use For What? Employee or family members illness or receipt of medical care (including preventative); employee or family member is victim of domestic violence; business, school or place of care is closed by order of public official Family Member is child, legal guardian or ward, godchild; spouse, domestic partner; parent, parents in-law, god-parent; siblings; grandparent, grandchild or any other person whose close association is the equivalent of a family relationship Same as Chicago ordinance Same as Chicago ordinance. (Cook County s rules do not include in their definition godchild, godparent, or co-parent, though likely would include these in the definition of those with a close association. ) 5 For non-fmla eligible employees, the maximum limit of use is 40 hours per year, regardless of the amount accrued, unless the employer s policy allows the use of more. (Section (A) and (c)(1)) and MW 3.08(c)). 4

6 Certification When Limit 5 Chicago Paid Sick Leave May require employee to certify need for use of Paid Sick Leave if employee is absent for more than 3 consecutive work days. (MW 3.14) Rules silent on whether it is permissible to require employee to provide certification for absences of 3 or less consecutive work days. May require employee to wait until 180 days after hire to use Paid Sick Leave May require up to 7 days notice if need foreseeable May limit use to 40 hours per 12-month period of regular use Paid Sick Leave plus 20 hours of Paid Sick Leave for FMLA. (3.08(d)) Contrast to Cook County, which would allow an employee, in one circumstance, to carry over 40 hours for FMLA use and 20 hours for regular earned sick leave. (Section (C)) If employer uses Immediate Grant/Frontloading, employee may use either 40 hours for FMLA purposes and 20 for regular PSL, or 20 hours for FMLA purposes and 40 for regular PSL, but is still limited to a total use of 40 hours if no FMLA is needed. Employee may use in hourly increments, unless employer has minimum use policy published for all employees. Minimum increment requirement cannot be greater than 4 hours. May require documentation showing need for leave if absent for more than 3 consecutive days. Rules specify that employers may not request documentation for absences of 3 or less days. Rules set out in detail the kinds of documentation that may be required. (Section ) May require employee to wait until 180 days after hire to use Earned Sick Leave. Employer may have a written policy requiring employee to provide reasonable notice when need for leave is foreseeable ( reasonable not defined). Except in one situation, may limit use to 40 hours per 12-month period without regard to whether sick leave is earned in current period or carried over from prior period. In one circumstance, employee has right to use up to 60 hours in a 12-month period, when Employee carries over 40 hours from prior periods that is designated as FMLA-Restricted Earned Sick Leave, employee uses all 40 hours for FMLA covered absences, then employer must allow the employee to use up to an additional 20 hours of Ordinance-Restricted Earned Sick Leave earned during current period. (Section (C)) Unless employer has a written policy defining minimum increments of use, the presumption is that the Employee can use Earned Sick Leave in whole hour increments. Employer may establish a minimum increment no greater than 4 hours. Break in Service If less than 12 months, employer may but is not required to make previous accrued but unused time available for use (MW 3.10) If less than 120 days, employer must count previous employment toward eligibility, but need not make previously accrued but unused time available for use 5

7 Enforcement/ Remedies Chicago Paid Sick Leave Ordinance refers to a private right of action to recover 3x back pay, interest, and attorneys fees; the final rules do not specifically address this right be refer to it generally. The final rules state an employee may initiate claim with Chicago Dept. of Business Affairs and Consumer Protection; subpoena issued for records the employer is required to maintain re accrual and use of Paid Sick Leave; if employer not in compliance, city can seek back wages due, fines, license suspension. No specific statute of limitations for filing a claim is stated in either the ordinance or in the rules, though the rules refer to the City having discretion to not consider a claim more than three years old. The rules state that this provision does not alter an employee s private right of action under the Ordinance. Employee may initiate private right of action, with damages being 3x the full amount of the unpaid sick leave, plus interest and attorneys fees. Employee may initiate a claim with the Cook County Commission on Human Rights within 3 years of violation; Commission will investigate, and when warranted proceed to investigative hearing. Commission may order fines payable to the County (up to $500 per violation per day), back pay (to the employee), other appropriate injunctive relief. 6

CHICAGO MINIMUM WAGE AND PAID SICK LEAVE RULES SUPPORTING CHAPTER 1-24 OF THE MUNICIPAL CODE OF CHICAGO

CHICAGO MINIMUM WAGE AND PAID SICK LEAVE RULES SUPPORTING CHAPTER 1-24 OF THE MUNICIPAL CODE OF CHICAGO ARTICLE 1 GENERAL RULES SECTION I. DEFINITIONS Terms used in these Rules that are defined in Chapter