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Illinois' New Sick Leave Law - A Mixed Bag for Illinois Workers

Illinois recently enacted legislation purportedly giving workers across the state greater flexibility when using their sick leave benefits. The Illinois Employee Sick Leave Act, which takes effect on January 1, 2017, is a noble attempt to balance people's family caregiving duties with their job responsibilities, but to many, its protections don't go far enough.

The Facts about Family Caregivers

The need for expanded personal sick leave laws in Illinois and elsewhere is clear. According to a 2015 AARP study:

  • An estimated 43.5 million adults in the U.S. have provided unpaid care to a family member in the past year.
  • 60% of caregivers are employed while providing care to a family member, and 56% work full time.
  • 60% of caregivers have had to make workplace choices including reducing their hours, taking a leave, risking warnings about attendance and performance, or quitting.
  • 60% of caregivers are female.

The reality is that more than 26 million Americans shoulder caregiving burdens that impact their employment to some degree, including women who already encounter equal pay and other challenges in the workplace.

What the Illinois Sick Leave Law Gives

The most significant change in Illinois' new legislation is a provision that expressly prohibits retaliation by an employer against an employee for exercising his or her right to sick leave benefits under the Act. The new law references certain conduct that is considered unlawful treatment, including:

  • Denying an employee the right to use personal sick leave benefits
  • Threatening to discharge, demote, suspend, or discriminate in any manner against an employee for:
    • using personal sick leave benefits,
    • attempting to exercise the right to use personal sick leave benefits,
    • filing a complaint with the Illinois Department of Labor or alleging a violation of the Act,
    • cooperating in an investigation or prosecution of an alleged violation of the Act, or
    • opposing any policy or practice or act prohibited by the Act.

Unfortunately, other provisions of the new law are less impactful, though they attempt to address the plight of working caregivers in Illinois.

Under the Act, an employer who offers personal sick leave policies must permit employees to use those benefits for absences "due to an illness, injury, or medical appointment" of a family member, but extends the definition of family member to include m other-in-law, father-in-law, grandchild, grandparent, and step-parent beyond immediate relatives (children, spouses, siblings, and parents). To be clear, sick leave benefits include time that the employee accrues and which are available to be used for qualified absences, but do not include compensation the employer offers through a short or long-term disability insurance coverage or other plans.

The employee can use personal leave time for his or her own illness or injury or a family member's illness or injury, but the employer can restrict the use of benefits to care for family member "to an amount not less than the personal sick leave that would be accrued during 6 months at the employee's then current rate of entitlement." This means that someone who accrues 40 hours of personal leave in a year, for instance, would be permitted to use no more than 20 hours of that entitlement to care for a family member.

What the Illinois Sick Leave Law Doesn't Give

Although progressive, the Employee Sick Leave Act shouldn't be viewed as a panacea for all of the caregiving needs and concerns of workers across the state.

Most notably, the Act does not require employers to provide personal sick leave benefits if they are not doing so currently. Given that employers will associate economic costs (payroll, overtime for other employees to cover absent workers, productivity, etc.) with expanded sick leave protections, the new law offers little inducement or incentive for employers to implement such policies if they don't already have them.

Also, for employers who do have such leave benefits in place and wish to offer broader benefits than the law requires, the Act doesn't extend the maximum 12 weeks of unpaid leave afforded by the federal Family & Medical Leave Act, nor should anyone construe the new law as the Illinois version of the FMLA.

And the sheer fact that the Act doesn't define "employer" or "employee" - leaving interpretation and application somewhat up in the air - is a cause for some concern.

Illinois vs. other States

Employee advocates see Illinois' sick leave law as a clumsy, half-hearted attempt, and it has received mixed reviews at best. With that said, while the new law ranks among the most benevolent state statutes in the U.S., it cannot be overlooked that the U.S. is the only wealthy country in the world that doesn't guarantee paid parental leave for employees.

The National Partnership for Women and Families created a "report card" that rates states on the statutory protections and benefits they provide to working families. As featured in a recent Money.com article, the rankings examined mandated parental leave, paid sick days, and accommodations for pregnant women and nursing mothers.

At the top of the class, California, New York, Washington D.C. received "A" grades and were lauded for guaranteeing paid leave that caregivers and working parents desperately need.

Illinois, along with ten other states, received a "B" grade. The rankings noted Illinois' "robust pregnancy and nursing accommodations" but also called out the absence of any requirement for employers to provide parental leave or sick days. Although no mention was made of the new law that takes effect in 2017, the fact remains that Illinois' Employee Sick Leave Act is not a mandate and does not create a right like the top-ranked states.

Interestingly, ordinances in Chicago and surrounding Cook County that take effect in July 2017 will make employees eligible for 40 hours of sick time per year, regardless of whether their workplace offers a sick leave policy. These local mandates will help the more than 900,000 workers in the county who don't currently enjoy those benefits.

Cautious Optimism

for the millions of Americans who have no alternative to personally caring for loved ones, real and meaningful change is long overdue. The power to implement that change has been ceded to the individual states, and it's up to each jurisdiction to address the needs of its citizens.

While Illinois should be credited for taking a step in the right direction with the passage of the Employee Sick Leave Act, its breadth and effect leave much to be desired.

The attorneys at Outten & Golden represent people across the country whose jobs and employment rights are violated due to unlawful workplace policies and discrimination, which in many cases involves personal sick leave issues. We will continue to monitor developments after the Illinois' new law takes effect in 2017.

Lori Deem is a partner in the firm's Chicago office. Learn more about Lori and her practice by viewing the video below:

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