Illinois Employer Update on Paid Leave
OCTOBER 2, 2023
By: Melvin Stevens
Illinois recently passed and signed into law the Paid Leave for All Workers Act (the Act). 820 ILCS §192/1 et seq. The Act will take effect January 1, 2024. This comprehensive Act requires that almost all employers conducting business in the state of Illinois provide workers with up to 40 hours of paid leave per year, accrued at the rate of one hour of leave per 40 hours worked. Employers may provide this leave on an accruing or “front-loaded” basis, with slightly different requirements (and benefits to the employer) for each. The Act defines both employee and employer broadly.
“Employees,” as defined by the Act, are: (1) all employees defined under the §§ 1-2 of the Illinois Wage Payment and Collection Act [IWPCA] (820 ILCS § 115/1-2); (2) domestic workers (who, for the purposes of this Act cannot be excluded as employees under the independent contractor provisions of the IWPCA [820 ILCS § 115/2(1-3)]); and (3) independent contractors (unless all three requirements for independent contractor classification are satisfied under the IWPCA; see O’Malley v. Udo, 2022 IL App (1st) 200007, ¶ 49).
There are several exceptions to this employee classification: (1) employees as defined by the federal Railroad Unemployment Insurance Act or the Railway Labor Act; (2) students enrolled in and regularly attending classes at a college/university who are also employed on a temporary basis at less than full time by that institution (but this only applies to work performed for that institution); (3) short-term employees who are employed by an institution of higher education for less than two consecutive calendar quarters and who do not have a reasonable expectation they will be rehired by the same employer for the same service in a subsequent calendar year (mainly adjunct professors); (4) employees in the construction industry (as defined in § 10 of the Act) who are covered by a bona fide collective bargaining agreement; and (5) employees covered by a bona fide collective bargaining agreement with an employer that “provides services nationally and international of delivery pickup, and transportation of parcels, documents, and freight.”
The Act does not affect the validity or change the terms of bona fide collective bargaining agreements in effect on January 1, 2024. After January 1, 2024, the provisions of this act may be waived in a bona fide collective bargaining agreement, but only if the waiver is set forth explicitly in clear and unambiguous terms. 820 ILCS §192/5.
“Employers,” as defined by the Act, are defined the same way as they’re defined in the IWPCA, except this term also includes state and local governments, political subdivisions, and agencies. The Act excludes from this definition school districts organized under the School Code or park districts organized under the Park District Code. Id. §10.
The intent of this law is to provide workers, with few exceptions, paid leave that can be used for any purpose. This Act does not, however, discourage or replace current paid leave programs that have already been implemented, so long as they meet the minimum floor established by the Act. There are several key provisions of the act that employers should keep in mind as they consult their counsel to ensure compliance. The legislature carved out a few key areas/employers that are exempt from this law, as enumerated above. The Act casts a wide net with the intent of providing as many Illinois workers as possible with paid leave.
The Act also does not allow employers to ask or require rationale be provided for the leave request. This applies to employers using pre-existing leave policies. To the extent an employer wishes to utilize pre-existing leave policies to satisfy the requirements of the Act, that leave may not require employees to provide rationale. Id. §15.
Employees are also not required to provide more than seven days’ maximum advance notice or require find a replacement to cover their work duties. Employers may require that employees give seven calendar days’ advance notice for leave that is foreseeable, but an employee is not required to tell his or her employer why the leave is being taken. Notice of unforeseeable leave must be given only as soon as is practicable. Additionally, employers may require an employee to take a certain amount of minimum leave; this minimum amount of leave cannot exceed two hours per day. Id.
Finally, employees begin to accrue their leave when employment commences, or when the law becomes effective, whichever is later. While employees are only entitled to start using their leave 90 days after employment begins (or March 31, 2024, whichever is later), employees begin to accrue this leave as soon as employment commences. Id.
Moving forward, almost every employer in Illinois will be required to provide a certain amount of paid leave to their employees. If you have questions relating to the Act, please contact Heyl Royster’s Employment & Labor Practice Group.