Draft Regulations on Cook County Paid Sick Leave Released

By Kathryn Montgomery Moran, Jody Kahn Mason, Ellen M. Bandel, Matthew M. Brown and Natalie S. Federle © Jackson Lewis May 24, 2017

Draft regulations that will govern the interpretation and enforcement of the Cook County Earned Sick Leave Ordinance have been released by the Cook County Commission on Human Rights. The final regulations will be adopted by June 1, according to the Commission.

The ordinance, which becomes law effective on July 1, mandates that employers in Cook County, Ill., allow eligible employees to accrue up to 40 hours of paid sick leave in each 12-month period of their employment. Following are highlights of the draft regulations.

Employers may define the accrual period. Under the ordinance, the accrual period appears to begin on July 1, or an individual's date of employment. The draft regulations clearly state that an employer may define an accrual period that is consistent with its benefit year (a uniform, 12-month period the employer regularly uses for granting and tracking benefits, such as paid time off).

Employee must be eligible for Family and Medical Leave Act to qualify for Ordinance's FMLA-restricted earned sick leave. The proposed regulations clarify that, in order for an employee to be eligible for the ordinance's FMLA-restricted sick leave, the employee must work for an FMLA-eligible employer and be eligible for FMLA leave.

To be eligible for FMLA leave, the employee must have worked for the employer for at least one year, have worked 1,250 hours in the past year, and have worked at a facility with at least 50 employees within 75 miles.

Recognizing many municipalities have opted out of the ordinance. The proposed regulations appear to recognize municipalities' right to opt out of the ordinance. Thus far, at least 32 municipalities in Cook County have opted out (or are considering opting out): Arlington Heights, Barrington, Bartlett, Bedford Park, Burr Ridge, Des Plaines, Elk Grove Village, Elmwood Park, Evergreen Park, Glenview, Hanover Park, Hickory Hill, Hoffman Estates, Lynwood, Mount Prospect, Norridge, Oak Forest, Oak Lawn, Orland, Park, Palatine, Palos Heights, Palos Park, River Forest, Riverside, Rolling Meadows, Rosemont, Schaumburg, South Barrington, Streamwood, Tinley Park, Western Springs and Wheeling.

Employees working in municipalities that opted out of the Ordinance still may be covered. The proposed regulations make clear, however, that even if a company is located exclusively in a municipality that has opted out of the ordinance, the ordinance still could apply to that company's employees if its employees perform compensated work at a location in a Cook County municipality that has not opted out.

For example, the regulations state that, for the purpose of determining who is a "Covered Employee" under the ordinance, the time an individual spends performing compensated work at the individual's residence or any other location that is physically in Cook County will be considered, if the employer requires or permits the individual to work at that location.

Employers are not required to allow accrual for time working outside Cook County or in municipalities that opted out. Under the draft regulations, employees will not accrue paid sick leave for time spent working outside of Cook County or within the boundaries of a municipality that has opted out of the ordinance.

Employers may be covered even if they do not have a place of business in Cook County. If an employer does not have a place of business within Cook County, but requires or permits one or more employees to telecommute from Cook County, then the employer may be a "covered employer" under the draft regulations.

Front load paid sick leave as alternative to accrual. Under the draft regulations, an employer may front load paid sick leave and still comply with the ordinance if the employer provides covered employees the maximum amount of earned sick leave the employee could accrue during the relevant accrual period.

Employers may not limit how an employee can provide notice of a foreseeable absence. The draft regulations expressly state that an employer may not prohibit an employee from using phone, email or text messaging to provide the required notice of a foreseeable absence.

Pre-existing paid time off policies may satisfy an employer's obligations. An employer is not required to use the same terminology used under the ordinance to describe paid leave benefits to satisfy its obligations. In order to satisfy the employer's obligations, however, the paid time off policy must comply with the ordinance's specific requirements, including its notification requirements and the requirement that no discipline be issued for the absences.

Employers with operations in Cook County should review the ordinance, together with the draft regulations, and their policies and practices related to paid sick leave carefully and prepare to finalize and distribute to employees their policies after the final regulations are adopted by Cook County. Chicago has a similar sick leave ordinance and is expected to release its guidance soon.

Kathryn Montgomery MoranJody Kahn MasonMatthew M. Brown and Natalie S. Federle are attorneys with Jackson Lewis in Chicago. Ellen M. Bandel is an attorney with Jackson Lewis in Los Angeles. © Jackson Lewis. All rights reserved. Reposted with permission. 

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