If Pain (Or Anything Else), Yes Gain – Part 108: Illinois DOL Publishes Answers to FAQs on Paid Leave for All Workers Act

What You Need To Know:

• Effective January 1, 2024, Illinois’ Paid Leave for All Workers Act requires most employers in the State of Illinois to offer 40 hours of paid leave for any reason to employees. Seyfarth’s prior update detailed the relevant provisions of the Act. 
• The Illinois Department of Labor (IDOL) recently published FAQs, intended to enhance public access and understanding of the law. As the Act’s effective date gets closer, employers should not wait to ensure their systems are set up to ensure compliance.
• As explained below, while the FAQs provide some helpful guidance, they still leave a number of substantive topics unaddressed, so we are hopeful that further updates and guidance will be forthcoming.

On May 23, 2023, IDOL published “Paid Leave for All Workers Act Frequently Asked Questions,” providing the first guidance on Illinois’ impending Paid Leave for All Workers Act (the “Act”). In large part, the FAQs generally set forth specific provisions of the Act in “bite-sized” form, with some larger interpretive questions still unanswered. For example, the FAQs highlight that the Act applies to part- and full-time employees, and that employers can “front-load” paid leave time (by providing a full year’s worth of leave that meets the minimum requirements of the Act at the beginning of the year).

As to one of employers’ biggest questions – how do existing paid time off policies intersect with the Act – the FAQs state that employers who already provide paid time off that “meet the minimum requirements of the Act” do not have to “add additional time.” This differs from the language of the Act, which states that employers who already provide paid leave “that satisfies the minimum amount of leave” need not modify their policies, so long as they allow employees to take that leave at their discretion for any reason.

Additional FAQs share the following insights and/or reminders:

Interplay With Paid Sick Leave Ordinances: The FAQs highlight that employers in municipalities who have opted out of another paid leave ordinance (i.e., Cook County paid leave ordinance) are still required to comply with the Act. 

Accrual For Part-Time and Exempt/Salaried Employees: For employers that do not want to frontload paid leave, the FAQs highlight that an employer can lawfully require their employees to accrue paid leave time based on number of hours worked, at a rate of one hour of paid leave for every 40 hours worked.  This means that a part-time employee might not accrue the full 40 hours of leave provided for in the Act by the end of the year based on the number of hours they worked. The FAQ gives the following example: 

Employee A works 15 hours per week, 52 weeks per year. They will accrue 19.5 hours of paid leave annually.  (15 times 52 = 780 hours worked per year. 780 divided by 40 = 19.5 hours of paid leave.)

The FAQ does not go so far to say, however, that an employer can limit frontloading to 19.5 hours of paid leave in their example.

Separately, the FAQs reiterate how accrual applies to exempt employees. Exempt employees who work more than 40 hours in a week do not accrue leave more rapidly for working in excess of 40 hours per week; they will be deemed to work 40 hours in each workweek. However, if an exempt employee’s regular workweek is less than 40 hours, their paid leave time accrues based on the number of hours in their regular workweek.

PTO Effective March 31, 2024:  Although accrual of paid leave is required to begin January 1, 2024, employees are not entitled to begin using the accrued paid leave until after 90 days after the Act’s effective date or the start of employment. Therefore, the earliest day any employee must be allowed to take time off time is March 31, 2024.  

Public Schools Have a “Hall Pass”:  The FAQs make clear that public school districts organized under the School Code are exempt from the Act, but that private schools – not organized under the school code – are not exempt from the Act. 

With the paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with paid leave requirements. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.