If Pain (Or Anything Else), Yes Gain – Part 118: Cook County, IL Passes New Paid Leave Ordinance; Releases Related Model Notice

What You Need to Know:

• On December 14, 2023, the Cook County Board of Commissioners (the “Cook County Board”) passed the new Cook County Paid Leave Ordinance (the “Ordinance”).  The Ordinance is effective December 31, 2023 and will replace the current Cook County Earned Sick Leave Ordinance.
• The Ordinance closely resembles the Illinois’ Paid Leave for All Workers Act (the “PLAWA”), which goes into effect on January 1, 2024.  The Ordinance requires covered Cook County employers to provide eligible employees with up to 40 hours of paid leave each year that can be used for any purpose.
• While the Ordinance is effective December 31, 2023, enforcement of the Ordinance is currently postponed to February 1, 2024.  Employers also can restrict employee use of paid leave under the Ordinance until March 30, 2024.
• Separate from the Ordinance and PLAWA, Chicago has made paid leave news in recent weeks after enacting a dual Paid Leave and Paid Sick and Safe Leave Ordinance.  Implementation of this new Chicago mandate begins July 1, 2024.
• The Cook County Commission on Human Rights (the “Cook County Commission”) released a corresponding model Paid Leave Notice (“model notice”).  Among other compliance obligations, the Ordinance requires that employers include the model notice in a written document, or written employee manual or policy.

Background:

The Cook County Paid Leave Ordinance passed the Cook County Board by a nearly unanimous vote on December 14, 2023.  One Board member declined to vote, but the remaining 16 members present voted in favor the proposed legislation.  The Ordinance is set to go into effect on December 31, 2023, which will also mark the sunset date for the current Cook County Earned Sick Leave Ordinance.

The new Ordinance largely overlaps with the Illinois State PLAWA.  More information on the PLAWA, which goes into effect on January 1, 2024, can be found here and here.  Mirroring the PLAWA, the Ordinance will require all employers in Cook County to provide up to 40 hours of paid leave per year to eligible workers to be used for any reason.  This is significant as the current Cook County Earned Sick Leave Ordinance restricts use of paid leave to absences related to sick or safe reasons.  The Ordinance is strikingly similar to most aspects of the PLAWA.  Here are some highlights.

Substantive Highlights:

• Employer Coverage: The Ordinance’s definition of a covered employer is borrowed from the PLAWA, and includes any individual, partnership, association, corporation, limited liability company, and so forth, for which one or more persons is gainfully employed.  However, the Ordinance does not include any federal, state, or local governments, governmental agencies or departments, or Indian tribes.
• Employee Definition: The Ordinance broadly incorporates the definition of “employee” as used in the Illinois Wage Payment Collection Act and also covers any domestic workers.[1]  “Employee” does not include, however, (i) employees as defined in the federal Railroad Unemployment Insurance Act or the Railway Labor Act; (ii) temporary college or university student-employees; (iii) certain short-term employees of a higher learning institution; and (iv) employees working in the construction industry who are covered by a bona fide collective bargaining agreement (“CBA”).  Importantly, the Ordinance slightly differs from the PLAWA in this sense, as the PLAWA excludes employees covered by a bona fide CBA with an employer that provides national and international delivery, pickup, and transportation of parcels, documents and freight, whereas such employees appear to be included in the definition of employee under the Ordinance.
• Accrual Rate: The Ordinance mirrors the PLAWA’s accrual rate, entitling employees to accrue one hour of paid leave for every 40 hours worked, up to 40 hours per 12-month period.
• Frontloading: The Ordinance also mirrors the PLAWA’s frontloading standards.  Employers may frontload 40 hours of paid leave each year to eligible employees (or a pro rata amount based on what the employee would earn if accrued during the year), rather than following an accrual method.
• Year-End Carryover and Annual Usage: The Ordinance resembles the PLAWA’s year-end carryover requirements.  Under both the new Ordinance and the PLAWA, and subject to clarification in forthcoming rulemaking, it appears that eligible employees will be permitted to carryover any accrued, unused paid leave at year-end.  However, employers that frontload the minimum amount of paid leave are not required to allow employees to carryover earned, unused paid leave from year to year.  Regardless of carryover balances, employers may limit an employee’s use of paid leave to a maximum of 40 hours per 12-month period.
• New Hire Accrual and Usage Waiting Period: The Ordinance and the PLAWA also have the same treatment of new hires in terms of both accrual start time and usage waiting period requirements.  First, new hires must be entitled to begin accruing paid leave upon hire or on the Ordinance’s effective date, whichever is later. Second, employers can restrict an employee’s use of paid leave until after the employee’s 90^thday of employment or 90 days after the December 31, 2023 effective date of the Ordinance (i.e., March 30, 2024), whichever is later.  Under the PLAWA, employers do not need to allow use of available paid leave until March 31, 2024.
• Benefit Year: The Ordinance also mirrors the PLAWA’s benefit year language. The 12-month period may be any consecutive 12-month period designated by the employer in writing at the time of hire.  An employer may change the 12-month period if: (i) written notice is provided to employees prior to the change; and (ii) the change does not reduce the eligible accrual rate and paid leave available to the employee.
• Reasons for Use: Like the PLAWA, the Ordinance specifically states that an employee may use paid leave “for any purpose.”  Further, an employee is not required to provide a reason for the leave or documentation or certification as proof or in support of the leave.  The employee can also choose whether to use paid leave under the Ordinance prior to using any other leave provided by their employer or state law.
• Minimum Increments: The Ordinance states that employers may set a reasonable minimum increment for use of paid leave as long as the increment does not exceed two hours. This standard is consistent with the PLAWA.
• Employee Notice to Employer: The Ordinance also mirrors the Illinois PLAWA’s notice requirements.  If use of paid leave is foreseeable, an employer may require the employee to provide up to 7 calendar days’ notice before the date the leave begins.  If the leave is not foreseeable, however, the employee must provide notice as soon as practicable.  If an employer intends to require employee notice of paid leave under the Ordinance when leave is not foreseeable, it must provide a written policy that contains the notice procedures for the employee to follow.
• Notice and Posting: As noted above, the Cook County Commission released a model “Notice to Employees” regarding the Ordinance. Employers must post this notice in a conspicuous place in all locations within the geographic boundaries of Cook County.  Further, covered employers must include the model notice in a written document, or written employee manual or policy, and provide the notice to employees at the time they commence employment. 
• Balance Notification: The Ordinance states that employers that provide paid leave via an accrual method must provide employees with notice of their amount of paid leave accrued or used by the employee upon employee request.  The PLAWA has a similar requirement.
• Existing Employer Policies: The Ordinance states that employers with existing paid leave policies do not need to modify those policies if the policy satisfies the minimum amount of leave required under the Ordinance, and offers employees the option, at their discretion, to take the paid leave for any reason.
• Payment on Termination: Like the PLAWA, the amended Ordinance does not require a payout of earned, unused paid leave upon separation of employment.  The PLAWA provided additional guidance in its FAQs, stating that payout of earned, unused paid leave is not required unless the leave is credited to the employee’s paid time off bank or employee vacation account.  As a reminder, Illinois law currently requires payout of earned, unused vacation time upon separation.  We expect forthcoming regulations and administrative guidance from the Cook County Commission to provide further detail on this topic.
• Leave for Reinstated Employees: The Ordinance resembles the Illinois PLAWA’s reinstatement requirements.  If an employee is separated from employment, but is rehired within 12 months by the same employer, previously accrued, unused paid leave must be reinstated. 
• Recordkeeping: Both the Ordinance and PLAWA include recordkeeping requirements, which mandate that employers retain certain records related to paid leave for a period of at least three years.
• Collective Bargaining Agreements: Mirroring the PLAWA, the Ordinance will not affect any CBAs in effect as of January 1, 2024.  However, subsequent CBAs will need to either comply with the Ordinance or include a clear and unambiguous waiver of its terms, subject to certain industry-specific requirements.
• Administration and Enforcement: The Ordinance will be administered and enforced by the Cook County Commission.  Aggrieved employees may bring a complaint to the Cook County Commission within three years of any alleged violation.  In addition, the Ordinance affords employees a private right of action, which must be brought within three years of the date of the last event constituting the alleged violation.

Employer Takeaways:

We expect Cook County to post updated FAQs and complaint forms, as well as interpretative regulations, in the coming weeks.  As of late-December 2023, the Cook County Commission’s Paid Leave website stated that “draft rules will be available for public comment in early 2024.”  In the meantime, as the Ordinance’s December 31, 2023 effective date is mere days away, employers should consider the following:

• Monitor the Cook County Commission’s website for the release of further guidance and regulations.
• Review leave policies and procedures to ensure that they meet at least the minimum requirements of the PLAWA and Ordinance.
• Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking time off under the PLAWA and Ordinance.
• Train supervisory and managerial employees, as well as HR, on the PLAWA and Ordinance’s requirements.

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 paidleave@seyfarth.com. 

 

[1] The Ordinance states that “domestic worker” includes independent contractors, sole proprietors, and partnerships.