ILLINOIS – PAID TIME OFF FOR EMPLOYEES
As you know, there is a new paid leave Act going into effect next year. The Illinois Paid Leave for All Workers Act (“Paid Leave Law”) takes effect January 1, 2024. Even if your business already provides paid time off (paid sick leave, personal time, vacation time, PTO), you may need to either a) modify your policies so as to comply with the Paid Leave Law OR b) provide additional leave to comply with the new law.
Some highlights of the Paid Leave Law:
Who does the law cover?
The Paid Leave Law applies to all businesses that a) are not covered by the Chicago or Cook County paid sick leave ordinances, b) have not entered into a collective bargaining agreement that is in effect on January 1, 2024, or c) have not entered into collective bargaining agreements after January 1, 2024, that explicitly waive rights under the Paid Leave Law.
Each covered business’ employees working in Illinois, including part-time, full-time, and seasonal employees, are able to accrue and use paid leave under the new law.
What if a municipality has opted out of the Cook County Ordinance?
We currently read the new Paid Leave Law as applying to employers in municipalities which have opted out of the Cook County Ordinance.
How much leave does the law require?
Employees accrue and use up to at least 40 hours of paid leave during a 12-month period (or a pro rata number of hours based on the number of hours worked).
Can we use a fiscal year for determining benefits?
Yes, as long as the employees are given written notice of the 12-month period and of changes to that period.
If we are using a year other than the calendar year, such as the fiscal year or an anniversary date, what do we do?
You can use a fiscal year or an anniversary date as your benefit year, but your policy must comply with the Paid Leave Law effective January 1, 2024. If you choose to modify your benefit year as a result of the new law you can, but changes cannot negatively impact the amount of paid leave already accrued by employees under your current policy.
How is leave accrued?
Paid leave begins accruing January 1, 2024, at the rate of one hour of paid leave for every 40 hours worked. Employees are entitled to begin using paid leave on March 31, 2024, which is 90 days after the law becomes effective on January 1, 2024.
Employers may also “upload,” or advance, the 40 hours of paid leave at the beginning of a benefit year. This is not required, but an option.
Must the employee provide a reason for taking leave?
No. Nor is an employee required to provide documentation in support of taking leave. An employee may choose to use paid leave provided under the Paid Leave Law prior to using any other leave provided by the employer or State law. (Note that leave allowed or required under Federal law is excluded from this restriction).
But wait, we currently require documentation under the VESSA, for example. What happens now?
If it is a state law, such as VESSA, an employee can use the new paid leave and not disclosure. If the employee is requesting VESSA leave for unpaid time off, you can request the documentation.
However, for something federal, like the Family & Medical Leave Act, you are permitted to have the employee use available paid leave time per your FML policy. We are still waiting on regulations to confirm this will remain the status under the new law.
So, should we get rid of specific vacation, sick or personal leave policies?
That is up to you. The Paid Leave Law does not forbid employers from offering more generous leave policies. If you have a PTO policy covering sick and vacation time, you may want to implement a separate paid leave policy complying with the Paid Leave Law and then reduce, on an hour for hour basis, the amount of leave that can be earned under your PTO policy. For example, if you have a PTO policy that allows employees to earn 80 hours of paid time off, reduce that to 40 hours and allow the other 40 hours to be earned under a Paid Leave Law policy.
If you have separate sick or personal leave policies, you may want to end or modify them to comply with the Paid Leave Law.
How much notice does an employee have to provide to use the paid leave?
An employer can require employees to provide oral or written request for leave in accordance with the employer’s leave policies, which may include the following:
Can I make the employee find a replacement to work the employee’s shift before allowing the employee to take paid leave?
Can we require the use of a minimum number of hours of leave at one time?
Employers may set a minimum increment for the use of paid leave of 2 hours per day or less. The 2 hours per day is the most an employer can require be used in a day. This differs from the Chicago and Cook County ordinances which allow employers to require that the paid sick leave be used in 4-hour blocks.
Does unused, earned leave carryover into the next benefit year?
If using the “accrual method,” employees can roll over any accrued, unused paid leave into the next benefit year. However, the employer can still limit the number of paid leave taken by an employee in a benefit year to 40 hours, regardless of how many hours are rolled over into, or earned in, a benefit year. This means that even if an employee rolls over 20 hours into the 2025 benefit year and earns an additional 40 hours in the 2025 benefit year, the employer only has to allow the employee to take 40 hours of paid leave in the 2025 benefit year.
Employers who “upload,” or advance, the paid leave at the beginning of the benefit year do not need to carryover unused paid leave and may require employees to use all their paid leave prior to the end of the benefit period or forfeit it.
Does unused, earned leave have to be paid to a terminated employee?
No, with one exception. If the employer allows for paid leave earned under the Paid Leave Law to be included to an employee’s “paid time off bank” or “employee time off account” of paid leave accrued under other employer policies, any accrued, unused time under the Paid Leave Law left in the “bank” or “account” at the time of the employee’s termination, resignation, retirement, or other separation, it is treated like any other accrued, unused paid leave under Illinois law and required to be paid out to the employee in the last paycheck.
What documents do I need to create and maintain tracking all of this?
Employers need to keep records for 3 years, for each employee, documenting:
Hopefully your payroll service can maintain this for you.
What paid leave information can an employee request?
An employer providing leave on an accrual basis has to provide the employee with the amount of paid leave accrued or used by an employee upon request.
Can the IDOL audit my records?
Can employees file a charge under the Paid Leave Law?
Yes. An employee may file a charge with the IDOL within 3 years after an alleged violation. If the IDOL finds cause that the law has been violated, an administrative hearing will be scheduled. The employee may be awarded damages in the amount of any underpayment as well as compensatory damages, and a penalty of not less than $500 and no more than $1,000. Employees shall also be entitled to recover their reasonable attorney’s and expert witness fees, and other costs of the action. The IDOL is also authorized to impose civil penalties of $2,500 for each separate offense.
Can I get sued in court for violating the Paid Leave Law?
No. But the Illinois Attorney General may sue to collect money awarded in administrative proceedings. An employee’s attorney may also sue to collect any fees awarded in administrative proceedings.
Is there another poster that I will have hang up?
Yes, Employers will be required to post their policy and an IDOL poster summarizing the law.
ILLINOIS – EMPLOYEE TRANSIT BENEFIT REQUIREMENT
Illinois has passed a new law requiring certain employers in the Chicago metropolitan area to offer pre-tax transportation benefits to their employees. An employer is required to offer all employees the ability to purchase CTA, Pace, and Metra passes through pre-tax payroll deductions, if the employer
All 3 conditions must be met for the employee to be eligible for the deduction.
*The RTA will offer a searchable map allowing employers to determine if they are within a mile of a bus or train stop. It is not yet available, but here is the link to the RTA website in the interim: https://www.rtachicago.org/
*Employers can comply with the law by participating in transit benefit programs offered by the CTA and RTA. Here are the websites for more information:
*This benefit must be offered to all employees starting on each employee’s first full pay period after 120 days of employment. The law does not explain how or when the “120 days of employment” is to be counted. No regulations have yet been issued either.
*Employers who have entered into collective bargaining agreements may be exempt from the law. Employers who have entered into a collective bargaining agreement that is in effect on January 1, 2024 are exempt. Employers who enter into collective bargaining agreements after January 1, 2024 are exempt if the contract explicitly waives rights under this law.
Given the number of employment related laws effective January 1, 2024, you may want to consider enrolling in the transit benefit programs offered by the CTA and RTA now and rolling it out to your employees at your convenience over the next four months.
There are updates to how employers must meet their obligations with completing the Form I-9 for all new hires (if you are not completing this form to verify the identity and employment authorization, see your attorney).
A new I-9 form will be released August 1, 2023.
What does the revised Form I-9 do?
When do I have to start using the new form?
While employers may begin using the new form beginning on August 1, 2023, the old, 2019 version of the I-9 form may be used through October 31, 2023. Beginning November 1, 2023, only the new Form I‑9, dated ”08/01/2023” may be used.
Can I still complete I-9s by remotely inspecting the employees’ records for new hires as I did during the COVID-19 pandemic?
COVID-19’s temporary flexibilities for completing I-9 forms end on July 31, 2023. Effective August 1, 2023, you will need to review employee records in person when completing an I-9 form with one exception:
What about I-9s I completed during COVID by remotely inspecting the employees’ records? Do I have to do anything?
Employers must complete in-person, physical document inspections for employees whose documents were inspected remotely during the pandemic by August 30, 2023.
Wait, I have to re-review in-person employee records I reviewed remotely when preparing I-9s?
Yes. Employers have until August 30, 2023, to physically inspect the records for those employees who were hired on or after March 20, 2020, and for whom the employer has, to date, only conducted a remote inspection.
DHS has provided examples of how employers can notate the Form I-9s previously completed with remote inspections of records (the “Original Form”) when subsequently performing the required in-person physical inspection.
These two notation examples can also be used for subsequent physical inspections of reverifications in the Additional Information field in Section 2 of the Original Form.
What if our employees are not returning to work in the office? Do we still need to conduct an in-person document inspection for each employee who we hired while using the COVID-19 remote inspection flexibilities?
Yes. Employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has to date only conducted a remote inspection consistent with the flexibilities first announced in March 2020. Employers will have until August 30, 2023 to complete in-person physical inspection of I-9 documents.
If our employees are all working across the country rather than in one location, how can we complete the in-person inspection? Are there alternative options?
Employers may choose to use an authorized representative to fill out the employer’s portion of the Form I-9 on their behalf. Authorized representatives may also complete the in-person inspection as needed.
What is an authorized representative?
The employer may designate an “authorized representative” to complete Sections 2 or 3 of Form I-9 on behalf of the employer, including personnel officers, foremen, agents, or notary public. The DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. You may need to engage someone to do this for you.
What if we completed a remote inspection of an employee’s documents when completing the I-9, but the employee separates from employment with our company prior to the completion of the in-person document inspection?
If the employee separates before a physical inspection of records can be completed, add an explanation in the Additional Information box on the Original Form and the date of the employee’s separation.
What if the employee presents acceptable documents for in-person inspection that are different from the acceptable documents presented for remote inspection?
If the employee presents acceptable documents for in-person inspection that are different from the ones they presented for remote inspection, then the employer may either:
What if the employee’s immigration status changed between the time of remote inspection and the in-person inspection?
You may either:
What if an acceptable document was valid during remote inspection but is now expired?
As long as the employee’s document was valid at the time of remote inspection, the employer should not request a new document and can proceed with the physical inspection.
What if an employee refuses to meet for a physical document inspection? Can we add a memo to the file indicating that we remotely examined the employee’s documents but were not able to complete physical inspection?
Employees are required to present documentation for in-person physical examination and employers are required to physically examine identity and work authorization documents. An employee’s refusal to present the documents for in-person physical examination is to be treated identically to an employee’s refusal to complete the Form I-9. It is illegal for an employer to retain an employee who refuses to cooperate in presenting documents for in-person physical examination as it is for the employer to retain an employee who refuses to cooperate in completing a Form I-9.
What does this mean in plain English?
Talk to your employment attorney ASAP.