February 27, 2023

By: Sally Piefer and Alexandra (Sasha) Chepov

On January 10, 2023, both houses of the Illinois legislature passed the Paid Leave for All Workers Act (the “Act”), which requires private employers to provide a minimum of 40 hours of paid leave for employees to use for any reason. Governor Pritzker has indicated that he will pass the Act. Therefore, Illinois employers should take all necessary actions to ensure that their policies and practices are compliant with the requirements imposed by the new law prior to the Act’s effective date, January 1, 2024.

Covered Employees:

The Act applies to all employees who work in the State of Illinois. However, the Act does not apply to employees who are covered by a collective bargaining agreement and work in the construction industry or for an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents and freight.

Covered Employers:

Any employer who employs at least one employee in the State of Illinois is subject to the requirements of the Act. However, the Act does not apply to any employer that is covered by a municipal or county ordinance, which is in effect on the effective date of the Act, that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Employers in municipalities or counties that enact or amend a local ordinance that provides paid leave, including paid sick leave, after the effective date of this Act must only comply with the local ordinance or other ordinance as long as the benefits, rights and remedies are greater than or equal to that afforded under the Act.

Paid Leave:

The Act requires all employers to provide and allow their employees to use and take a minimum of 40 hours of paid leave during a 12-month period. The 12-month period may be any consecutive 12-month period designated by the employer in writing at the time of an employee’s hire or the time the employer implements a policy consistent with the Act’s requirements.

The Act provides two methods by which an employer can offer its employees paid leave. If an employer accrues leave under the Act, the leave accrues at a rate of 1 hour of paid leave for every 40 hours worked up to a minimum of 40 hours. Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act are deemed to have worked 40 hours each workweek for purposes of paid leave accrual. An employee who earns paid leave under the Act on an accrual basis begins to accrue leave at the commencement of their employment or on the effective date of this Act, January 1, 2024, whichever is later.

Employers also have the option of offering their employees a minimum of 40 hours of paid leave at an employee’s time of hire or the first day of the 12-month period.

An employee may take paid leave under the Act for any reason of the employee’s choosing and is not required to provide their employer with a reason for leave. Paid leave under the Act must be provided upon on the oral or written request of an employee in accordance with the employer’s reasonable paid leave policy notification requirements which may include the following:

• When use of paid leave is foreseeable, employers may require the employee to provide 7 calendar days’ notice before the date the leave is expected to begin.

• When use of paid leave is not foreseeable, the employee is required to provide such notice as soon as is practicable after the employee is aware of the necessity of leave.

The Act provides that employers who require notice of paid leave under the Act when the leave is not foreseeable must provide a written policy that contains procedures for employees to provide notice. Employers are prohibited from denying the use of leave to an employee because of noncompliance with an employer’s leave notification policies, unless the employer has provided a written copy of its notification policy to the employee. The Act further provides that an employee may not be required to provide documentation or certification as proof or in support of the leave. An employee may also choose whether to use paid leave provided under this Act prior to using any other leave provided by the employer or state law.  Employees may not be required to search for or find a replacement worker to cover the hours which the employee takes paid leave.

Unlawful Retaliation:

Under the Act, it is unlawful for any employer to threaten or take any adverse action against an employee because the employee:

• Exercises rights or attempts to exercise rights under the Act,
• Opposes practices which the employee believes to be in violation of the Act, or
• Supports the exercise of rights of another under the Act.

Further, the Act provides that it is unlawful for employers to consider the use of paid leave by an employee as a negative factor in any employment action that involves evaluating, promoting, disciplining or counting paid leave under a no-fault attendance policy.

Employees who believe that they have been unlawfully retaliated against are entitled to file a claim with the Department and may recover all legal and equitable relief as may be deemed appropriate.

Takeaway:

Many employers already have leave policies. Paid leave under this Act is not intended to be charged or otherwise credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit. However, employers should be cautious if they do so, because this could inadvertently result in having to pay any unused paid leave to an employee upon their separation to the same extent as vacation time under existing Illinois law must be paid.

The extent to which employers subject to the Act’s requirements must modify their existing policy will undoubtedly vary. Employers should ensure that management is informed and appropriately trained on the Act’s requirements, and should ensure that their policies and procedures are compliant with the Act’s provision prior to January 1, 2024.

If you have questions about this material or require assistance in reviewing and updating your policies, please contact Sally Piefer by email at spiefer@lindner-marsack.com or Alexandra (Sasha) Chepov by email at achepov@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.