Chicago Issues Draft Regulations for Its Paid Sick Leave Ordinance: How Do They Differ from the Cook County Earned Sick Leave Ordinance's Final Regulations?
On June 16, 2016, Chicago passed its Paid Sick Leave Ordinance (the "Chicago Ordinance"), which requires every employer that maintains a business within Chicago and/or is subject to Chicago license requirements – except those in the construction industry – to provide paid sick leave to covered employees. The Chicago Ordinance is virtually identical to the Cook County Earned Sick Leave Ordinance (the "Cook County Ordinance"), which applies to all employers within the County. The relevant substantive provisions of the Chicago and Cook County Ordinances are the same:
- The same start date: July 1, 2017;
- The same entitlement: One hour of paid sick leave for every 40 hours worked; and
- The same carry over: the employee can carry over 20 hours of accrued but unused sick time which the employee can use for any permissible purpose under the Ordinances. For those employees working for an FMLA-eligible employer (i.e. employs 50 or more employees within a 75 mile radius), the employee may carry over 40 hours of accrued but unused sick time, which the employee may use for FMLA-related purposes.
On May 22, 2017, Chicago issued draft regulations for the enforcement of the Chicago Ordinance, and is accepting public comments through June 16, 2017 at 9:00 a.m. On June 1, 2017, Cook County issued final regulations governing the enforcement of the Cook County Ordinance. There currently are inconsistences between the draft Chicago regulations and the final Cook County regulations. Employers subject to both ordinances must understand the differences. The relevant inconsistences are set forth below.
Under both the Chicago and Cook County Ordinances, rather than using the accrual method for calculating earned sick leave, at the beginning of each 12-month period employers may frontload the maximum amount of paid sick leave that an employee could accrue during the year. If the maximum amount of hours is provided upfront, employers are not required to permit employees to carry over accrued but unused paid sick leave into the subsequent 12-month period. The Chicago and Cook County Ordinances differ in how many hours FMLA-eligible employers must provide at the beginning of each new 12-month period to comply with the respective Ordinances.
- The Chicago Ordinance requires that non-FMLA eligible and FMLA-eligible employers provide 60 hours of paid sick leave at the beginning of each new 12-month period. These hours include the required 40 hours to which each employee is entitled and any carry over sick leave hours for permissible use under the Ordinance or for FMLA related reasons.
- The Cook County Ordinance requires non-FMLA eligible employers to provide 60 hours of paid sick leave (i.e. the 40 hours required each year plus the 20 hours maximum carry over hours) at the beginning of each new 12-month period. However, for FMLA-eligible employers to comply with the Ordinance, they must provide 100 hours of paid sick leave (i.e. the 40 hours required each year, the 20 hours that may be used for any permissible purpose under the Ordinance, and the 40 hours that may only be used for FMLA-related purposes) at the beginning of each new 12-month period.
Calculating Carry Over Hours
Both Ordinances permit employees to carry over to the next 12-month period accrued but unused sick leave that may be used for any permissible purpose under the Ordinances and/or for FMLA-related reasons. The inconsistency between the Ordinances is how many non-FMLA designated paid sick leave hours an employee can carry over at the end of the employee's initial accrual period.
- The Chicago Ordinance instructs that if an employer's specifically designated 12-month accrual period already has commenced prior to a new employee's hire date, then at the end of the new employee's first accrual period, the employer must permit the employee to carry over into his/her second accrual period all of his/her accrued but unused paid sick leave up to a maximum 20 hours.
- The Cook County Ordinance makes this practice permissive, not mandatory, and states that at the end of an new employee’s first accrual period, the employee may carry over all of his/her accrued but unused paid sick leave into his/her second accrual period, and places no cap on the number of hours.
Rounding Up Carry Over Hours Between Accrual Periods
- The Chicago Ordinance provides that if an employee has an odd number of accrued but unused paid sick leave hours remaining at the end of the 12-month accrual period, the employer must round up to the next even number when calculating the number of non-FMLA-designated paid sick leave hours to carry over. For example, if an employee has 17 hours of paid sick leave remaining at the end of the year, that number is rounded up to 18 hours.
- The Cook County Ordinance does not make this distinction and/or require employers to do this.
Maximum Amount of Sick Leave Hours an Employee May Use in a Year
Both the Chicago and Cook County Ordinances permit employees to accrue up to a maximum of 40 hours of paid sick leave in each 12-month accrual period. However, each Ordinance differs in the maximum amount of paid sick leave that an employer may permit an employee to use during a 12-month accrual period.
- The Chicago Ordinance instructs that an employee may use up to a maximum of 60 hours of accrued but unused paid sick leave during any 12-month accrual period, unless the employer sets a higher amount.
- The Cook County Ordinance states that an employee may use up to a maximum of 40 hours of accrued but unused paid sick leave during any 12-month accrual period, unless the employer sets a higher amount.
These inconsistencies will undoubtedly lead to administrative and tracking issues for employers who are subject to each Ordinance. Additionally, if these inconsistences are not resolved, employers may face administrative actions and be subject to violations should they choose to follow one Ordinance over the other. Hopefully, Cook County and the City of Chicago will resolve these conflicts by July 1, 2017, when each Ordinance takes effect.
Should employers located within Chicago and/or who are subject to Chicago license requirements seek to voice a concern or propose a suggested revision to Chicago's draft regulations, they are encouraged to submit comments directly to Rey Phillips Santos and Barbara Gressel of the City of Chicago by June 16, 2017 at 9:00 a.m., the deadline for submitting comments. Clark Hill is ready to help any Chicago employer with drafting concerns or proposed changes in the regulation.
If you have any questions about these ordinances or regulations or if you need advice on how to comply with the ordinances, please contact Scott Cruz at (312) 985-5910 | firstname.lastname@example.org, or your Clark Hill labor and employment attorney.
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