Effective January 1, 2017, Illinois employers will be required to allow employees in the State to use accrued sick leave for employee absences to attend to family member medical appointments or to otherwise care for an illness or injury of qualifying family members. The recently enacted Employee Sick Leave Act (the "Act") guarantees employees the right to use accrued sick leave to attend to medical appointments or to otherwise care for an ill or injured "child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent."
The Act limits coverage to Illinois employers who maintain internal sick leave policies. The Act allows covered employers to limit the leave an employee may take on a paid basis to the accrued sick leave of the employee. For sick leave that accrues over time, the amount of sick leave subject to the Act is the sick leave an employee would accrue in a six month time period. The Illinois law does not extend the maximum leave guaranteed by the federal Family and Medical Leave Act (FMLA) or existing Illinois leave obligations of employers. However, careful consideration will be required as to whether the period of absence is also covered by the FMLA which may require mandatory classification. Employers who maintain general paid time off ("PTO") policies that allow employees to use PTO to care for a family member will be susceptible to use of such time for all eligible ill or injured family members under the Act.
The Act also protects employees against employer retaliation for leave taken to care for a family member. Specifically, the Act prohibits employers from denying an employee's right to leave under the Act, discharging, threatening to discharge, demoting, suspending, or otherwise discriminating against an employee for taking accrued sick leave.
Unfortunately the Act lacks clarity in its application. For example, the Act fails to address how employees can prove they qualify as a caregiver, the notice required before taking sick leave under the Act and whether an employer can request certification from the employee or a treating health care provider as would otherwise be required for paid sick leave under the employer's policy. Therefore, careful consideration of the obligations in the taking of sick leave should be undertaken.
We encourage employers to consider reviewing employment policies to:
- Concurrently run leave permitted under the Act with the employer's FMLA responsibility;
- Establish notice obligations for use of the paid sick time;
- Define substantiation obligations for absences from work, including those for Act covered family members; and
- Update Sick Leave Policy language adjustments to define eligible "accrued sick leave" for use under the Act.