Employment Law Q&A: What do I need to know about Illinois’ new paid leave laws?
Illinois has enacted or effectuated two new paid leave requirements in recent months - the Illinois Family Bereavement Leave Act (IFBLA), which provides leave in connection with the death of a family member, including time off following miscarriages, unsuccessful rounds of fertility treatments, a failed fertility treatments and stillbirths; and the Paid Leave for All Workers Act (PLAWA), which provides paid leave for any reason.
IFBLA went into effect on January 1, 2023, while PLAWA does not go into effect until January 1, 2024.
Paid Leave for All Workers Act
How is leave provided for PLAWA?
PLAWA provides 40 hours of paid time off annually (or during 12 months designated by the employer), which an employee may use for any reason. Employees accrue one hour of leave for every 40 hours worked. Employees may begin taking PLAWA leave 90 days after employment or 90 days after the law's effective date. PLAWA requires an employee to accrue one hour per 40 hours, but the employer may frontload the leave.
How is PLAWA leave earned?
Employers that adopt the accrual-based system must allow employees to carry over unused leave each year, but they can cap the carryover at 40 hours annually. If employers frontload, then they may prohibit carryover.
There is no requirement to payout PLAWA leave each year or upon separation. However, if the employer uses a current paid time off policy to credit PLAWA leave, then it must pay out such unused time according to Illinois wage and hour law. (Ill. Admin. Code tit. 56, § 300.520.)
What about existing paid leave laws?
Employers who have one employee in Illinois are required to provide such leave. As many Illinois employers are aware, Cook County and Chicago already have paid leave ordinances. PLAWA does not apply to those employers that comply with such county or municipal paid sick leave laws. PLAWA left open the question as to how PLAWA would apply where employees are working on a hybrid working model and whether it applies when employers have employees working within jurisdictions that have paid sick leave laws and outside such jurisdictions. PLAWA currently provides an exemption for the entire company where such a company has employees inside and outside locations with local or county paid leave laws. For example, employers with ten employees working in Cook County or Chicago and 50 employees outside those areas but in Illinois would not be required to provide any benefits to the 50 employees. We will seek more information regarding this issue and release an update when further guidance becomes available.
How is PLAWA leave taken?
Employers may require only seven days’ notice of the need for leave where such need is foreseeable.
Similar to the FMLA, employees need to notify the employer of the need for leave as soon as practicable.
Employers may require employees to use leave in 2-hour increments but not more. PLAWA prohibits an employer from requesting the reason for the leave or directing documentation or certification to support the need for leave.
What are the record-keeping requirements for PLAWA?
PLAWA requires employers to preserve records demonstrating hours worked, accrued, leave taken, and the remaining balance of available leave for three years.
What are my next steps?
Review existing paid time off policies to determine if they comply with the requirements of PLAWA. Decide how you will administer the paid leave, for instance, if the company will accrue paid time off or front load. We will continue monitoring developments in this area and provide updates as they arise.
Illinois Family Bereavement Leave Act
Under Illinois Family Bereavement Leave Act (IBLA), employees are eligible for up to two weeks of unpaid bereavement leave per event and up to 6 weeks of unpaid bereavement leave during a 12-month period.
IFBLA requires employers with 50 or more employees to provide two weeks of unpaid leave for the death of a "covered family member" or for pregnancy, adoption, or fertility
A “covered family member" is defined as an employee's (a) child, (b) stepchild or stepparent, (c) spouse, (d) domestic partner, (e) sibling, (f) parent, (g) mother or father-in-law, (j) grandchild, or (k) grandparent. Employees can take leave to attend a funeral, make arrangements, or "grieve."
Pregnancy, fertility, or adoption-related events under the Illinois Family Bereavement Leave Act
Employees are eligible for up to two weeks of leave during a 12-month period taken due to (a) a miscarriage; (b) an unsuccessful round of assisted insemination; (c) failed adoption; (d) a failed surrogacy agreement;(e) a negative diagnosis concerning pregnancy or fertility; or (f) a stillbirth.
What notice is required under the IFBLA?
For bereavement or pregnancy, fertility, or adoption leave, employees must provide 48 hours' notice of their leave unless doing so would be unreasonable or impracticable. Also, employees must complete their leave within 60 days of receiving notice of the qualifying event.
In addition, if employers request documentation verifying the qualifying event, the employee must provide the same. This documentation could include but is not limited to a published obituary, a death certificate, funeral bills, or some other certification demonstrating the death of a covered family notice. A doctor's note from the adoption or surrogacy organization will suffice regarding pregnancy, fertility, or adoption. The Illinois Department of Labor has provided a form online for this purpose.
What about FMLA?
Under IFBLA, the leave runs concurrently with the FMLA. If an employee has already used all of his or her FMLA leave at the time of a qualifying event, he or she would not have available leave under the IFBLA. With that said an employer may provide additional leave than the law requires.
What are the penalties for failing to comply with the IFBLA?
An employer may be penalized civilly $500 for the first offense and $1,000 for subsequent offenses. Also, a court may require the employer to comply with the statute by issuing an injunction, which could lead to further penalties if violated.
What are my next steps?
As this law has already become effective, you will want to make sure you comply first and foremost. Set up administrative functions to ensure such compliance. Finally, you will need to update your policies and ensure your compliance posters are current.
Please get in touch with any Labor and Employment attorney at McDonald Hopkins if you need assistance.
