Chicago Catches Paid Sick Leave Fever
Today (June 22, 2016), Chicago’s City Council passed an ordinance requiring employers to provide paid sick leave to employees beginning on July 1, 2017. Mayor Emanuel spoke in favor of the ordinance following the Council’s vote, noting his “fervent wish” that the state of Illinois would follow suit and pass a statewide paid sick leave law. Chicago joins Minneapolis, Los Angeles and San Diego as the most recent cities to pass paid sick leave laws.
Chicago’s ordinance is, in many respects, similar to paid sick leave laws in other jurisdictions, but it has a few key differences and a few ambiguities, detailed below. In order to be eligible for paid sick leave under Chicago’s law, an employee must work for an employer for at least 80 hours in any 120-day period. Employees will accrue one hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours per 12‑month period (calculated from when the employee first became eligible to accrue paid sick leave (e.g., January 1, 2017 or upon hire)). All employees may carry over half of any unused, accrued paid sick leave hours to the next year, up to a maximum of 20 hours.
Chicago’s ordinance is unique in that it allows employees to carry over additional sick leave from one year to the next, to be used for absences that are eligible under the federal Family and Medical Leave Act (FMLA). The law provides that if the employee is FMLA-eligible, the employee may carry over an additional 40 hours of accrued, unused paid sick leave to the next year. This is where things get murky. The law states that employees may only use 40 hours of paid sick leave per year. However, if an employee “carries over 40 hours of Family and Medical Leave Act leave … and uses that leave, he or she is entitled to use no more than an additional 20 hours of accrued Paid Sick Leave in the same 12‑month period….” As written, the ordinance technically could be read to require an employee to carry over a full 40 hours of FMLA sick leave and use all of that leave before the employee could use sick leave for any other purpose during that 12‑month period. Surely, that is not the intent, but the way the ordinance is currently drafted certainly creates confusion as to whether an employee who has carried over FMLA sick leave is required to use up all of that leave before taking sick leave for any other (non-FMLA eligible) purpose. Hopefully, the City will realize this, make revisions or provide guidance clarifying the matter for employers before the ordinance goes into effect.
As in most other jurisdictions, employees may use paid sick leave for: the employee’s or the employee’s family member’s illness or injury, or to receive medical care, treatment, diagnosis or preventive medical care; for absences resulting from the employee or the employee’s family member’s status as a victim of domestic violence or a sex offense; or if the employee’s place of business or child’s school is closed due to a public health emergency. Notably, Chicago’s law has an expansive definition for family member, extending it to include any individual related to the employee by blood, or whose close association with the employee is the equivalent of a family relationship.
Employers should also be aware that the Chicago law requires that they provide notice of covered employee’s rights to paid sick leave with the first paycheck issued after the law goes into effect on January 1, 2017 (or the first paycheck after hire, for employees hired after that date). The City will be providing a form notice that employers can use for this purpose.