United States: Cook County Passes Paid Leave Ordinance

Executive Summary:On December 14, 2023, the Cook County Board of Commissioners passed the Cook County Paid Leave Ordinance, which replaces the Earned Sick Leave Ordinance. The new Paid Leave Ordinance (the "Ordinance") is effective only 17 days later, on December 31, 2023, giving Cook County employers virtually no time to update their policies. Enforcement will begin on February 1, 2024.

Similarities to the Illinois Paid Leave for All Workers Act (PLAW Act)

The Ordinance is the same as the PLAW in the following ways:

• "Employee" is defined using the definition under the Illinois Wage Payment and Collection Act and also includes domestic workers. "Employee" does not include:
  1. employees under the federal Railroad Unemployment Insurance Act;
  2. students enrolled in a college or university that is also the student's employer if the student is working less than full time;
  3. short term employees employed by an institution of higher education for less than two quarters; and
  4. federal employees, employees of a State or State agency, and employees of an Indian tribe.

• Employers must provide employees with 1 hour of paid leave for every 40 hours worked.
• Overtime exempt employees are presumed to work 40 hours per week unless their regular workweek is less than that, in which case paid leave will accrue based on those hours.
• Paid leave can be used for any reason.
• Employees do not need to provide a reason or proof of the need for leave.
• Employers can cap the amount of paid leave that is accrued at 40 hours.
• Employers can cap the amount that can be used at 40 hours.
• Employers can set minimum increments for use of no more than 2 hours.
• Paid leave begins to accrue on the first day of employment, but employers can impose a 90-day waiting period for employees to begin using paid leave. (Current employees may be required to wait until March 30, 2024, to begin using accrued leave if the employer chooses.)
• Employers can frontload 40 hours of paid leave (or a pro rata share for a period of less than one year) at the beginning of the designated 12-month benefit year and avoid having to carry over any leave to the next period.
  • Employers who frontload do not have to pay out unused leave at the end of the year and can consider the unused leave to be forfeited.
• Employers who have employees accrue paid leave as they work must allow employees to carry over unused leave to the next benefit year; however, employers can still limit use to 40 hours.
  • Employers using the accrual method must also provide employees with an accounting of paid leave accrued and used upon request (note that under the PLAW Act, the accounting must be provided on every pay stub or in some other system to which employees have access, not just upon request).
• Employees can choose whether to use Cook County Paid leave or other types of leave that may be provided by the employer.
• Employers can require notice of at least 7 calendar days if the use of paid leave is foreseeable, and if the need for leave is not foreseeable, employers can require employees to provide notice as soon as is practicable after the employee becomes aware of the need for leave.
• Employers may not require employees to find replacements as a condition of taking a leave.
• If an employer keeps leave earned under the Ordinance separate from other forms of leave (such as vacation or personal), the employer does not need to pay out unused leave upon termination of employment. If the employer combines the leave required under the Ordinance with other types of leave, then any unused leave must be paid out on termination.
• The Ordinance does not apply to employees in the construction industry who are covered by a Collective Bargaining Agreement (CBA).
• A CBA can allow for waiver of the requirements of the Ordinance as long as the waiver is set forth explicitly in such agreement in clear and unambiguous terms.
• Employers must post a notice advising of all rights under the Ordinance in a conspicuous place in all locations where an employee works in Cook County.

When the Earned Sick Leave Ordinance was passed, the majority of Cook County municipalities opted out of the ordinance. We do not expect nearly as many opt-outs this time since the PLAW Act is very similar to the new Ordinance. Some municipalities have been looking into opting out of the Ordinance for their own municipal employees, in part fearing that they may be left with a dire situation due to a lack of coverage for emergency and public works personnel, which were not exempted from the Ordinance. Some municipalities may choose to opt out simply for the ease to businesses in their jurisdictions that also have locations outside of Cook County who may prefer to just have one policy. Employers in any municipality that opts out of the Cook County Ordinance will need to follow the PLAW Act unless that municipality enacts its own paid leave law prior to January 1, 2024.

Enforcement and Penalties

Employees can file suit in state court and recover damages equal to three times the amount of paid leave denied or lost, plus interest, costs, and reasonable attorney's fees. Employees may also file an administrative complaint with the Cook County Commission on Human Rights. At the Commission, employees may recover damages of the actual amount of the underpayment, compensatory damages, and a penalty of $500 to $1000. Employers may also be liable for a penalty of $2500 per violation. The statute of limitations for either a lawsuit or Commission complaint is three years.

Differences from PLAW Act

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.