New Year, New Laws in Illinois

​2023 will bring new laws affecting Illinois employers. The Illinois legislature passed over 180 laws that took effect on Jan. 1. This article will cover three developments for Illinois employers, including rest and meal break requirements, bereavement leave updates, and hair-based discrimination protections.

Rest and Meal Break Requirements

Amendments to the One Day Rest in Seven Act (ODRISA) include five changes that employers should keep in mind in the new year:

• Mandatory Day of Rest Period: The statute now requires employers to give employees 24 consecutive hours of rest "every consecutive seven-day period," as opposed to "every calendar week" as previously established. Employers can no longer schedule employees to work for more than seven consecutive days across two calendar weeks without a single day off work. Employers wishing to schedule employees to work for more than six consecutive days will need to obtain waivers from the Illinois Department of Labor and may not do so more than eight weeks a year.
• Additional Meal Breaks: In addition to providing employees who work 7.5 continuous hours a 20-minute meal break, employers are now required to permit employees to take a second 20-minute meal break for every additional 4.5 continuous hours worked.  The amendment clarifies that a meal break "does not include reasonable time spent using the restroom facilities."
• Increased Penalties for Violations: Violations are now subject to civil penalties up to five times higher than the previous $100 limit, as well as payments to employees directly as damages, as opposed to just fines to the state. Employers with less than 25 employees may be fined up to $250 in penalties payable to the Illinois Department of Labor and damages up to $250 per violation payable to the employee(s) affected. Employers with 25 or more employees may be fined up to $500 in penalties payable to the Illinois Department of Labor and damages up to $500 payable to the employee(s). Each week an employee has not been given 24 consecutive hours of rest will constitute a separate offense, and each day an employee has not been provided a meal break will constitute a separate offense.
• Notice Requirement: The amendment mandates that employers conspicuously post at the workplace a notice provided by the Illinois Department of Labor, outlining employee rights under ODRISA and information on how to file a complaint. Employers also must provide the notice by email or on a website for traveling and remote employees.
• Excluded Employees: A second ODRISA amendment made the day of rest provision inapplicable to employees "for whom work hours, days of work, and rest periods are established through the collective bargaining process." This is in addition to the previous list of excluded employees, which included individuals employed in a "bona fide executive, administrative, or professional capacity or in the capacity of an outside salesman" as defined under the Fair Labor Standards Act (FLSA); supervisors, as defined under the National Labor Relations Act (NLRA); and part-time employees who work 20 or fewer hours in a calendar week. Although employees covered by a collective bargaining can be exempt from the requirements of ODRISA by having express alternative terms in the collective bargaining agreement, the state Department of Labor has stated that silence in the agreement regarding meal periods or days of rest will result in the legal requirements of ODRISA being applied to those employees, regardless of their union status.

Prior to 2023, affected employees couldn't recover damages for ODRISA violations. With the new penalty provision permitting employees to collect money, employees now have a financial incentive to report ODRISA violations, which will likely result in an increased number of complaints filed against employers across the state.

Expanded Bereavement Leave

Illinois enacted amendments to the Child Bereavement Leave Act (CBLA), which required employers to provide employees up to 10 days of unpaid leave annually to grieve the death of a child. The amendments expand the scope of the CBLA and rename it the Family Bereavement Leave Act (FBLA).

The FBLA requires employers to provide employees up to 10 days of unpaid leave annually to grieve the death of "any covered family member," including an employee's child, stepchild, spouse, domestic partner, sibling, parent, stepparent, mother-in-law, father-in-law, grandchild or grandparent.

The FBLA requires employers to provide employees unpaid bereavement leave to:

• Attend the funeral of a covered family member.
• Make arrangements necessitated by the death of a covered family member.
• Grieve the death of a covered family member.
• Be absent from work due to a miscarriage, stillbirth, unsuccessful round of fertility treatment, failed adoption match, failed surrogacy agreement, or a diagnosis that negatively impacts pregnancy or fertility.
  

An employee becomes eligible for unpaid bereavement leave after 12 months of employment and at least 1,250 hours worked within the previous 12-month period. An employee must provide the employer at least 45 hours' notice of the employee's intention to take bereavement leave, unless providing such notice is not reasonable or practicable under the circumstances. An employee must complete bereavement leave within 60 days from the date the employee receives notice of the death of a covered family member or the occurrence of a qualifying event related to pregnancy, fertility, adoption or surrogacy.

An employer may require reasonable documentation to substantiate an employee's request for bereavement leave. For requests related to pregnancy, fertility, adoption or surrogacy, an employer cannot require that an employee identify the relevant qualifying event. The Illinois Department of Labor is expected to publish a form for completion by the employee's health care practitioner that would attest to the occurrence of such a qualifying event, but that would not specifically identify which qualifying event occurred.

If an employee has exhausted leave permitted under the Family Medical Leave Act, the FBLA does not grant the right to additional leave.  

Protections Against Hair Discrimination

The Create a Respectful and Open Workplace for Natural Hair Act (CROWN Act) amends the Illinois Human Rights Act to include hair-based discrimination protections. The bill expands and clarifies the definition of race to include "traits associated with race, including, but not limited to, hair texture and protected hairstyles such as braids, locks and twists." This amendment extends these protections to employment, housing and public accommodations.

Employers cannot discriminate against individuals because of hairstyle or hair texture that are actually or perceived to be associated with a particular race. Employers can still maintain dress code and grooming policies, so long as any restrictions in the policies do not violate the CROWN Act. Employers should update diversity policies and training to include hair texture and protected hairstyles. Illinois joins at least 16 other states that have adopted similar laws.

Employers should review their applicable policies to ensure they are consistent with the new laws.

Kerri Feczko, Marissa Ross Ingley, Darren M. Mungerson, Jeff Nowak, Maria Palivos, Jeronimo Simonovis and William Whalen are attorneys with Littler in Chicago. © 2022. All rights reserved. Reprinted with permission.