December 19, 2023Client Alert

Cook County’s New Paid Leave Ordinance Replaces the County’s Earned Sick Leave Ordinance Effective December 31, 2023

In yet another twist to the mandatory paid leave law changes coming to Illinois in 2024, on December 14, 2023, the Cook County Board of Commissioners voted to replace Cook County’s current Earned Sick Leave Ordinance with an entirely revamped Paid Leave Ordinance (“Ordinance”). The new Ordinance eliminates Cook County’s existing paid sick leave provisions completely. In lieu of such sick leave, Cook County has largely adopted the paid leave requirements set forth in the new Illinois Paid Leave for All Workers’ Act (“PLAWA”). Consistent with the PLAWA, the new Ordinance requires employers to provide covered employees with up to 40 hours of paid time off per year, which employees can use for any reason. The new Ordinance is effective December 31, 2023, and employees will begin accruing paid time off under the Ordinance’s new framework immediately. Consequently, employers whose employees are covered by the new Ordinance have approximately two weeks left to revise their paid leave policies and implement any necessary payroll changes.

As noted above, the new Ordinance mirrors the new Illinois PLAWA, though PLAWA did not previously apply to Cook County unless a municipality in Cook County had opted out of Cook County’s Earned Sick Leave Ordinance. We have previously reported on the PLAWA here and here. Like the PLAWA, the key provisions of the new Cook County Ordinance can be summarized as follows:

Employee and Employer Coverage

With limited exceptions, the Cook County Ordinance applies to most employees in Cook County (full-time, part-time, seasonal, etc.) who are not already covered by the PLAWA or the City of Chicago’s paid sick leave and paid leave ordinances. The limited exceptions for covered employers and employees include federal and state government employers, employees working in the construction industry who are covered by a collective bargaining agreement, and employees covered by collective bargaining agreements in effect on January 1, 2024. After January 1, 2024, parties to a collective bargaining agreement in industries other than the construction industry may agree to waive the Ordinance’s requirements, but only if the waiver is set forth explicitly in the agreement in clear and unambiguous terms.

Rate of Paid Leave Accrual and Annual Caps on Accrual and Use

Employees are entitled to accrue one hour of paid leave for every 40 hours worked. Exempt employees are deemed to work 40 hours in each workweek for purposes of leave accrual (unless their regular workweek is less than 40 hours, in which case paid leave accrues based on the employee’s regular workweek). Employees begin accruing paid leave on December 31, 2023, or the first day of their employment, whichever is later. Note: employees covered under the new Ordinance begin accruing paid leave one day before employees covered under the PLAWA begin accruing paid leave, as the PLAWA does not go into effect until January 1, 2024.

Employers may place a 40-hour cap on employees’ accrual and use of paid leave during each 12-month period.

Carryover Rules and Frontloading Option

Employers who require employees to “accrue” paid leave hours over time must allow employees to carry over any paid leave they have accrued under the Ordinance from year to year (although, employers may still cap use of paid leave at 40 hours per year). Like the PLAWA, the Ordinance’s language does not include a cap on how many hours an employee may carry over from one year to the next. However, proposed rules from the Illinois Department of Labor (“IDOL”) suggest that IDOL plans to permit a “reasonable” carryover cap of 80 hours. We anticipate Cook County will follow Illinois’ lead with respect to any final rules regarding carryover.

As an alternative to the accrual method, employers may “frontload” an employee’s anticipated paid leave hours for the 12-month benefit year on the first day of the employee’s employment or at the beginning of the 12-month period that has been designated by the employer as its 12-month benefit year. Employers who frontload paid leave to their employees are not required to permit carryover of employees’ paid leave hours from one year to the next and, instead, may require employees to use all paid leave within the 12-month period or forfeit any unused portion.   

Rules Regarding Use of Paid Leave

Employees may use paid time off for any reason. Significantly, employers may not require employees to provide a reason for taking leave and may not require employees to provide any documentation or certification to support employees’ use of paid leave. Employers may set a “reasonable minimum increment” for the use of paid leave, so long as that increment does not exceed two hours.

Like the PLAWA, the Ordinance provides that employees may choose whether to use paid leave prior to using any other leave provided by the employer or Illinois State law, which raises questions about employees’ ability to stack paid leave on top of other types of leave available to them.

Unless an employer allows employees to use earned or accrued paid leave sooner, employees may not begin using available paid leave hours until March 30, 2024, or 90 days after their hire date, whichever is later. Paid leave must be paid at the employee’s hourly rate of pay or the full minimum wage in effect for the employee at the time paid leave is taken, whichever is greater. Employers must maintain an employee’s health care coverage during any period of paid leave an employee takes under the Ordinance.

Employee Notice Requirements

If the use of paid leave under the Ordinance is foreseeable, employers may require employees to provide 7 calendar days’ notice before the date the leave is to begin. If the need for leave is not foreseeable, employers may require employees to provide notice of the need for leave “as soon as is practicable” after the employee becomes aware of the need for leave. If an employer requires its employees to provide notice of paid leave when the leave is not foreseeable, it must have a written policy that describes the employer’s notice procedures.

No Required Payment of Unused Paid Leave Upon Separation of Employment

Like most mandated paid sick leave and paid leave laws (with the notable exception of certain provisions included in Chicago’s new Paid Leave and Paid Sick and Safe Leave Ordinance), Cook County’s new Ordinance does not require an employer to pay an employee any accrued, but unused paid leave provided under the Ordinance upon termination of employment. However, in instances where an employer charges paid leave required under the Ordinance to an existing vacation or paid time off policy, such payout would be required to the same extent as required under the Illinois Wage Payment and Collection Act and rules.

Coordination with Existing Employer Policies

Critically, if an employer already has vacation or paid time off policies that are consistent with or more generous than the minimum requirements of the Ordinance – and allow employees to use paid leave for any reason – the employer is not required to modify such policies. It is unknown how broadly Cook County will interpret this provision.

Employer Posting, Notice, and Record-Keeping Requirements

The Ordinance requires employers to post a notice regarding employees’ rights under the Ordinance at each of its facilities where an employee is covered by the Ordinance. The Cook County Commission on Human Rights is responsible for preparing the required notice. If an employer does not have a facility located in Cook County, the employer is exempt from this requirement. 

Employers also must provide employees with written notice regarding their rights to paid leave under the Ordinance at the beginning of their employment. In addition, such notice must be included in the employer’s employee handbook, manual, or policy (if the employer has one). Employers may be required to post and provide notices in languages other than English if a significant portion of its workers are not literate in English.

The Ordinance requires employers to retain certain records documenting hours worked, paid leave accrued and taken, and paid leave balances for all employees for at least three years.

Employer Prohibitions

Under the Ordinance, employers may not:

  • Set a minimum increment for the use of paid leave that exceeds two hours;
  • Require an employee to provide a reason for requesting or using paid leave;
  • Require an employee to provide any documentation or certification in support of the paid leave;
  • Require an employee taking leave to find a replacement worker to cover the time they will be on paid leave;
  • Threaten to take or take any action against an employee for exercising rights under the Ordinance, opposing practices the employee believes to violate the Ordinance, or supporting the exercise of rights under the Ordinance; and/or
  • Consider the use of paid leave provided pursuant to the Ordinance as a negative factor in any employment action that involves evaluation, promoting, disciplining, or counting paid leave under a no-fault attendance policy.

Potential Damages and Penalties

Employees who believe their employer has violated the Ordinance may file a complaint with the Cook County Commission on Human Rights or pursue a private civil action. Employees are not required to file an administrative complaint with the Commission before pursuing a civil action. Employees have three years after an alleged violation to file such a complaint with the appropriate court or with the Commission.

If an employee prevails in a civil action, potential damages include:  damages equal to three time the full amount of any paid leave denied or lost by reason of the violation (plus interest), and reasonable attorney’s fees. If an employee prevails on a complaint filed with the Commission, potential damages include: damages equal to the amount of any actual underpayment, compensatory damages, and a penalty of not less than $500 and no more than $1,000. Employers who violate the Ordinance also are subject to a $2,500 civil penalty for each separate offense (not including offenses related to the Ordinance’s notice requirements, which may include civil penalties of $500 (first offense) to $1,000 (subsequent violations)).

The Commission will not order remedies for violations of the Ordinance’s paid leave provisions until February 1, 2024.

Next Steps

Cook County intentionally included an effective date of December 31, 2023, to ensure the new Ordinance is not preempted by the Illinois PLAWA, which goes into effect on January 1, 2024.  Consequently, employers will need to act very quickly to ensure their paid time off policies and payroll practices comply with the Ordinance’s requirements by the end of this year. We recommend employers review their existing policies regarding paid sick leave, vacation, and/or paid time off and consult with their employment counsel as soon as possible to meet this compliance deadline.

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