By Attorney Paul Ryan
Under a new Illinois law that becomes effective on January 1, 2024, nearly all Illinois employees will be entitled to take a minimum of 40 hours of paid leave per year for any reason. The Paid Leave for All Workers Act (“the Act”) is intended to further the public policy of providing Illinoisans with paid leave “to maintain their health and well-being, care for their families, or use for any other reason of their choosing.” 820 ILCS 192/5. With the passage of the law, Illinois becomes the third state in the nation to require paid leave.
The Act is notable for its “no questions asked” approach to granting leave. Under the Act, employers cannot require their employees to provide a reason or supporting documentation for the leave. Employers are also prohibited from requiring an employee to find someone to cover their work assignments for them while they are on leave. However, employers may require employees to provide seven days advance notification for leaves that are foreseeable. If the need for paid leave is not foreseeable, employers can require employees to provide notice as soon as practicable after the employee becomes aware of the need to take leave.
Employees can start using paid leave 90 days after they begin working for an employer or 90 days after the act becomes effective, whichever date is later. The law entitles covered employees to earn and use up to a minimum of 40 hours of paid leave during a 12-month period. Employees accrue one hour of paid leave for every 40 hours worked. Salaried employees who are exempt from the overtime requirements of the Fair Labor Standards Act are generally deemed to work 40 hours in each workweek for purposes of accruing paid leave. Employers also have the option of making the full 40 hours of paid leave available to employees on the first day of their employment or the first day of each 12-month period, instead of requiring employees to accrue the benefit over time.
If an employer uses the accrual method, it must allow employees to carry over unused paid time off to the next 12-month period. The carryover provision protects employees with unused time off from forfeiting that time at the beginning of a new 12-month period. However, employers are not required to allow employees to accumulate multiple weeks of paid time off by carrying over unused time. An employer is still allowed to limit the employee to 40 hours of paid time off in any 12-month period. If an employer chooses to provide the full 40 hours at the beginning of the 12-month period, it is not required to allow employees to carry over any unused leave.
Employees are entitled to be paid at their hourly rate when they take paid leave under the Act. For occupations that customarily include tips or commission as part of an employee's compensation, employees taking leave must receive at least the full minimum wage that applies in the jurisdiction where they are employed. Additionally, employers must maintain any group health insurance coverage for employees while they are on leave.
Employers are generally not required under the Act to pay employees for unused paid leave accrued under the Act when their employment ends. However, if the employer charges or credits paid time off to an employee's paid time off bank or employee vacation account, then unused paid time off must be paid upon separation to the same extent as vacation time. If an employee leaves an employer and is rehired within 12 months by the same employer, the employee's previously accrued unused leave must be reinstated.
Employers remain free to offer workers more generous paid time off policies than the Act provides.
The Act excludes coverage for some workers. The Act does not apply to:
- Employees as defined in the federal Railroad Unemployment Insurance Act or the Railway Labor Act;
- Certain students employed by the college or university they attend;
- Certain short-term employees of institutions of higher learning;
- Employees in the construction industry who are covered by a bona fide collective bargaining agreement;
- Employees covered by a bona fide collective bargaining agreement with employers that provide services nationally and internationally of delivery, pickup, and transportation of parcels, documents, and freight;
- Employees covered by a city or county ordinance that requires employers to provide paid leave, such as the Chicago Paid Sick Leave Ordinance and Cook County Earned Sick Leave Ordinance;
- Independent contractors.
The Act prohibits employers from firing or taking other adverse actions against employees who use or attempt to use paid leave provided under the Act. The Act also prohibits employers from retaliating against employees who oppose violations of the Act or support another employee's exercise of their rights under the Act. Employees who believe they have suffered unlawful retaliation in violation of the Act may file a claim for appropriate money damages and equitable relief (reinstatement, for example) with the Illinois Department of Labor.
The information above is meant only to provide a general overview of the Illinois Paid Leave for All Workers Act. If you are an employee or employer with questions about your rights or obligations under the Act, please feel free to reach out to the knowledgeable attorneys at CTM Legal Group for assistance.