By Attorney Michael R. Stiff
On January 1, 2017, the Employee Sick Leave Act, 820 ILCS 191/5, went into effect. Although the title might suggest that it is a paid sick leave law, that is not the case. An employer is not required to provide sick time or other such benefits to its employees. Rather, the new statute requires employers that do provide sick pay or benefits or have a sick pay policy to allow employees to use a portion of that time to cover the illnesses of other family members as defined by the statute.
The new Act generally requires that employers who provide their employees with sick leave further allow their employees to use (in some cases) up to ½ of their available annual accrual for the care of the specified family members, including (as of January 1, 2017) the employee’s children, spouse, siblings, parents, mothers-in-law, fathers-in-law, grandchildren, grandparents or step-parents.
Initially, there was some confusion as to whether domestic partners were included in the original Act because the words “domestic partner” was contained in one section but not in others. It was also ambiguous and uncertain, based on the statute as passed in 2016, whether the Act included paid or unpaid employer provided sick time. It was likewise unclear as to whether the legislation meant it to apply to paid sick leave benefits that did not accrue.
Finally, and most importantly for municipal entities and other businesses with collective bargaining agreements, the Act did not address whether it had any effect on existing agreements.
On January 10, 2017, the Illinois General Assembly passed a series of amendments to the Act, which Governor Rauner promptly signed into law on January 13, 2017. The amendments remove many of the ambiguities from the original version and clarify that the Act applies to employees’ children, step-children, spouse, domestic partners, siblings, parents, mothers-in-law, fathers-in-law, grandchildren, grandparents, and step-parents.
The amendments also added language to Section 10 of the Act that allows an employer to request written verification of the employee’s absence from a healthcare professional if such verification is required under the employer’s employment benefit plan or paid time off policy.
Additionally, the amendment added a new Section 21, which exempts employers and employees that are subject to the following:
- Title II of the Railway Labor Act;
- Employer or employees as defined in either the Federal Railroad Unemployment Insurance Act or the Federal Employer’s Liability Act or other comparable law;
- Exemptions create by the Illinois Department of Labor (IDOL) under regulations to be promulgated thereby;
- Section 21 also expressly states that the Act does not interfere with any collective bargaining agreement, and therefore should not be construed to invalidate or interfere with any party’s power to bargain such an agreement.
Other amendments intended to remove ambiguity from the original version of the Act include:
- The definition of “personal sick leave benefits” was amended to include both paid and unpaid employer-provided sick time, irrespective of whether it is accrued or not;
- Long-term and short-term disability insurance policies are not covered under the definition of “personal sick leave benefits”;
- Sick time can be used to cover step-children and domestic partners;
- An employee may take sick time for those designated family members upon the same terms that they are able to take sick time for themselves;
- If sick time is granted based on years of service rather than on an accrual basis, the use of sick time for family members can be limited by the employer to ½ of the employee’s maximum annual grant; and
- The anti-retaliation provision does not prohibit an employer from applying the terms and conditions of the plan that governs paid sick time.
Despite these amendments, some questions remain unanswered. For example, it is not clear how the Act operates where an employer does not limit the maximum amount paid sick time an employee can take. Fortunately, the amendment does allow the Illinois Department of Labor to adopt regulations to guide implementation of the Act. Obviously, this rule making power will allow further evolution and, hopefully, clarification of the Act as amended. For a full version of the Act, as amended, please click here.