Beginning January 1, 2024, employees in Illinois will accrue Paid Leave, which they’ll be able to use for any purpose. The Illinois Department of Labor (IDOL) anticipates filing a draft of the rules before the effective date of this Act. Under the rulemaking process there will then be a public comment period on those rules and a time period for the IDOL to make any changes. Finalized rules should be in place before March 31, 2024. In the meantime, here are the highlights.
The new law applies to employers of all sizes and almost all employees are covered, with limited exceptions. Employers are exempt if they’re required to provide paid sick leave under the sick leave laws in Chicago or Cook County.
Accrual and Carryover
Employees will accrue Paid Leave at a rate of one hour of Paid Leave for every 40 hours worked. Employers can calculate exempt employee accrual based on a 40-hour workweek (even if the employee generally works more than that) or they can use their normal workweek if they regularly work less than 40 hours.
Employers can cap accrual at 40 hours per year. Unused Paid Leave must be carried over from year to year.
Instead of using an hour-by-hour accrual system, employers can frontload an employee’s Paid Leave bank with 40 hours at the beginning of each year, in which case they don’t need to allow carryover of unused Paid Leave.
Employees can begin to use their Paid Leave on March 31, 2024, or after 90 days of employment, whichever is later. Employers may cap use of leave at 40 hours per year.
Employees may use Paid Leave for any reason. Employers cannot require documentation to support an employee’s request for Paid Leave.
Employees are entitled to determine how much Paid Leave to use, though employers can require them to use their Paid Leave in minimum increments of two hours, or their entire workday, if shorter than two hours.
Employers are required to provide employees with notice about their Paid Leave rights by displaying a poster at each worksite and providing individual notice to each employee. Employers that have a handbook or policy manual must include it there as well. The Illinois Department of Labor (IDOL) will create the required notice.
Employers can require employees to provide seven days’ notice for foreseeable leave and as much notice as is practicable for unforeseeable leave.
Employers aren’t required to pay out unused Paid Leave when an employee quits or is terminated. Employees who are rehired within 12 months of separation must have their unused Paid Leave restored.
Employers can use their existing vacation or paid time off policy to fulfill their obligations under the new Paid Leave law, as long as it offers equal or better benefits. In that case, however, unused vacation or paid time off must be paid out when an employee separates from employment (as required for vacation and paid time off under state law).
Resourcing Edge will share additional guidance as soon as it is released by the state.
Chicago’s Paid Leave and Paid Sick and Safe Leave Ordinance DELAYED
The effective date of Chicago’s new Paid Leave and Paid Sick and Safe Leave Ordinance—which will double the amount of paid leave employers in the city need to provide—has been pushed back to July 1, 2024. The ordinance has also been amended to change the definition of a covered employee to someone who works 80 hours in the city within 120 days and to require that employers provide their written paid time off policy to each covered employee in their primary language. Until the new requirements become effective, employers need to continue complying with Chicago’s existing paid sick leave ordinance.
Resourcing Edge will share additional guidance closer to the newly revised effective date, July 1, 2024.
The Illinois Child Extended Bereavement Leave Act (CEBLA) is effective January 1, 2024, and entitles employees to an additional amount of unpaid, job-protected leave when they lose a child because of homicide or suicide. The CEBLA leave amounts are as follows:
- Large employers—with 250 or more employees—must provide up to 12 weeks of unpaid, job-protected leave to their full-time employees; and
- Small employers—with at least 50 but less than 250 employees—must provide up to six weeks of unpaid, job-protected leave to their employees who have worked for them for at least two weeks.
Leave can be taken in a single, continuous period or incrementally, but in no less than four-hour increments. It also must be taken within a year after the employee notifies their employer of their loss. Employers can require reasonable advance notice of the employee’s need for leave, unless it’s unreasonable or unpracticable for them to provide notice. Employers can also require reasonable documentation, e.g., verification of memorial services from a funeral home, and documentation with the cause of death.
Employees who are entitled to take paid or unpaid leave (including family, medical, sick, annual, personal, similar leave, or through an employment benefits program) may substitute that other leave for an equivalent period of child extended bereavement leave. However, CEBLA doesn’t extend the maximum leave period employees are entitled to under the federal Family and Medical Leave Act or under any other paid or unpaid leave entitlement. Additionally, employees can’t take leave under the Illinois Family Bereavement Act for the death of a child when they already used CEBLA leave for that same child.
Illinois’ Employee Blood Donation Leave Act has been amended and renamed the Employee Blood and Organ Donation Leave Act. Starting January 1, 2024, employers with 51 or more employees are required to allow full-time employees who have worked for them for at least six months to take up to 10 days of paid leave in any 12-month period to serve as an organ or tissue donor.
The Victims’ Economic Safety and Security Act (VESSA) has been amended to expand the list of circumstances for which employees may take leave. Starting January 1, 2024, employees can take leave if a family or household member was killed as a victim of violent crime. Employees may use up to two workweeks (10 workdays) of unpaid leave to attend the funeral, make arrangements, or grieve the death of a family or household member who was killed in a crime of violence. This leave must be completed within 60 days after the date the employee receives notice of the victim’s death. Additionally, the employee cannot take leave that exceeds, or is in addition to, unpaid bereavement leave that may be available under the Family Bereavement Leave Act (FBLA). The amendment also outlines certification requirements for this expanded use of leave.
Effective June 1, 2024, the following Illinois laws will be amended as follows:
- The Illinois Personnel Record Review Act will allow employers to mail or email a copy of requested records and charge a fee limited to the actual cost of duplicating the requested record.
- The Illinois Minimum Wage Law, the Equal Pay Act (EPA), the Illinois Wage Payment and Collection Act, and the Child Labor Law will require employers to provide notices to remote employees via email or by posting on their website.
Additionally, businesses required to file an annual Employer Information Report (EEO-1) with the federal Equal Employment Opportunity Commission will no longer be required to submit it to the Illinois Director of Labor. However, they must continue to provide the director with a list of all employees during the past calendar year, separated by gender and race and ethnicity categories as reported in their EEO-1, along with other information as mandated by the state’s EPA.
Electronic Notice Requirements
Effective January 1, 2024, employers with employees who don’t regularly report to a physical workplace need to provide certain required notices electronically. This includes the notices for the following laws:
- Illinois Minimum Wage Law
- Illinois Equal Pay Act
- Illinois Wage Payment and Collection Act
- Illinois Child Labor Law
You can provide these notices by email or post them somewhere conspicuous on your company’s website or intranet if you regularly use the website or intranet to communicate work-related information, and it can be accessed freely by all employees.
Effective September 1, 2023, a new City of Evanston Fair Workweek Ordinance required employers—in the following industries with varying employee count thresholds: hospitality, food service, retail, warehouse service, manufacturing, and building services—to provide their employees with:
- Advance notice of their work schedules;
- Schedule change notice with the right to decline previously unscheduled, added hours;
- Compensation for schedule changes;
- Additional working hours before offering the hours to new or contract employees;
- The right to rest;
- The right to request a flexible working arrangement; and
- Notice of their rights under the law.
Employees covered by the ordinance must work for a covered employer, perform at least two hours of work in Evanston in a calendar week, and qualify for minimum wage. Employers can’t retaliate against an employee for asking about or exercising their rights under the law.
Effective April 24, 2023, all Chicago employers must comply with changes to the city’s ban the box rule, which include but aren’t limited to:
- Arrest records, which employers can’t use as a basis for refusing to hire, segregate, or act in recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or employment terms, privileges, or conditions. This generally applies to conviction records as well, unless there’s a substantial relationship between the conviction and the job, or employing the person would be an unreasonable risk to property or public safety and welfare, based on the consideration of specific factors (e.g., length of time since the conviction, nature and severity of it, rehabilitation efforts, etc.).
- New written notice requirements, employee response requirements, and final decision requirements if employers preliminarily decide that a person’s conviction record disqualifies them from employment.
Effective April 14, 2023, employers in Illinois now have significant new recordkeeping obligations with respect to employee expense reimbursement as well as a bit more direction about when reimbursement is required. While Illinois employers have been required to reimburse employees for business expenses since 2019, the statute was brief, and the Illinois Department of Labor (IDOL) had not provided any illuminating guidance. New rules have now been released and we address the key points below.
Employers must keep all of the following for at least three years:
- Any policies regarding reimbursement
- Employee requests for reimbursement
- Documentation showing approval or denial of reimbursement
- Documentation showing actual reimbursement, including any supporting documents
Meaning of “Primary Benefit”
The statute requiring reimbursement says that employees must be reimbursed for necessary expenditures, which include all reasonable expenditures required of employees while doing their job and that are for the primary benefit of the employer. While we still don’t have guidelines for what counts as “reasonable,” IDOL has provided a five-factor test to determine whether an expense is for the primary benefit of the employer. Because this is a factors or balancing test, employers should look at the answers as a whole. Just because the answer to one or more is “no” doesn’t mean you can rule out reimbursement. The factors are:
- Whether the employee has any expectation of reimbursement.
- Whether the expense is required or necessary to perform the employee’s job duties.
- Whether the employer is receiving a value that it would otherwise need to pay for.
- How long the employer is receiving the benefit.
- Whether the expense is required of the job.
Expenses that should have been reimbursed but were not, are now owed to departing employees as part of their final pay. Making unreimbursed expenses part of their final pay creates both a payment deadline and employer liability under the wage payment law.
Policies Not Followed
The new regulation warns that if employers have a practice of reimbursing employees for expenses above and beyond their policy limits, deviating from that practice would be a violation of the law. In essence, if you let some people exceed the policy limits and still get fully reimbursed, you need to let everyone exceed the policy limits and get fully reimbursed.
Effective January 1, 2023, Illinois expanded its requirements for days of rest and meal breaks, which apply to employers of all sizes.
More Frequent Days of Rest
Employers will have to provide nonexempt employees with at least 24 consecutive hours off of work in each consecutive seven-day period instead of each calendar week. This means employers can’t schedule an employee for more than six days in a row. There are several exemptions, including for supervisors and employees who work 20 hours or less per week. The law still allows employers to obtain a waiver if an employee wants to work on their day of rest. The application is available from the Illinois Department of Labor (IDOL).
Additional Meal Break for Long Shifts
Employees who work more than 7.5 hours in a row will be entitled to an additional 20-minute meal break for every 4.5 hours worked. For example, an employee who works a 12-hour shift will get two 20-minute meals breaks.
Employers must post a notice about these rights in a conspicuous location at work. For employees who don’t regularly report to the workplace, employers must provide the notice by email or on an internal website that the employer regularly uses to communicate work-related information and that all employees can regularly access.
Effective January 1, 2023, employers are prohibited from discriminating on the basis of traits associated with race, including hairstyle. The state’s employment discrimination law, which applies to employers of all sizes, will define race to include traits associated with race, including, but not limited to, hair texture and protective hairstyles. Examples of protective hairstyles include braids, locks, and twists.
Employers should evaluate any policies that limit hairstyles, including policies that contain indirect restrictions, such as those that require hair to be less than a certain length. We also recommend training those involved in the hiring process to not make judgments about professionalism or cultural fit based on hairstyle. If you have safety concerns, brainstorm ways to safely allow protected hairstyles. For example, employees with long hair may be able to tie it back or cover it during hazardous activities. If you (or the employee) can’t resolve a conflict between protected hairstyles and safety, we recommend consulting with an attorney before taking adverse action against the employee.
Many states that adopt a CROWN act (which stands for Create a Respectful and Open World for Natural Hair), including Illinois, define race to include any trait associated with race—not just hairstyles. This could generate broader applications of the law, such as protections for dialect and styles of dress.
Effective January 1, 2023, bereavement leave in Illinois was expanded to include more than the death of a child. Employers that have 50 or more employees will now be required to provide employees with time off for the death of an expanded list of family members, including grandparents and grandchildren, and for an expanded list of reasons related to pregnancy, fertility, and adoption, including miscarriage. Employers can cap bereavement leave at 10 workdays per death or event, and six weeks for the deaths of multiple family members in a 12-month period. The leave can generally be unpaid. Employees are entitled to use their other available paid time off, such as vacation time, during their leave.
Employees who have already exhausted their leave entitlement under the federal Family and Medical Leave Act (FMLA) aren’t entitled to bereavement leave. Employees must complete their leave within 60 days after the event affecting pregnancy, adoption, or fertility or receiving notice of their family member’s death.
Expanded List of Covered Family Members
Eligible employees will be able to take bereavement leave to attend a funeral, make post-death arrangements, and grieve for the death of their:
- Child (whether biological, adopted, foster, step, legal ward, or via in loco parentis)
- Domestic partner (whether registered or in a committed personal relationship)
- Parent (including parents-in-law and stepparents)
Expanded Reasons for Leave
In addition to taking leave for the above reasons, eligible employees will also be entitled to take bereavement leave for the following reasons:
- A miscarriage
- A stillbirth
- An unsuccessful round of an assisted reproductive technology procedure (for example, an intrauterine insemination or embryo transfer)
- A failed adoption match
- An adoption that isn’t finalized because it’s contested
- A failed surrogacy agreement
- A diagnosis that negatively affects pregnancy or fertility
The law as written doesn’t limit bereavement leave for these reasons to the pregnant person or intended parent.
Effective January 1, 2023, employers that are required to file a federal EEO-1 report are required to send the information from Section D of the EEO-1 report to the Illinois Secretary of State, beginning in 2023. We recommend contacting IDOL for additional guidance related to this law.