Illinois Paid Leave Brings a Twist to Expanding Sick Time Laws

Providing paid time off would become mandatory for many Illinois employers under legislation awaiting Gov. JB Pritzker’s signature, creating an unusual alternative to the paid sick time laws enacted by 30-plus state and local governments.

The Illinois legislation (SB 208) would guarantee workers accrue paid time off, up to 40 hours or five workdays per year for full-time employees. Workers could use the time off for any reason, unlike the more common paid sick and safe leave laws that could be set for expansion in a handful more states in 2023. Pritzker (D) has said he supports the bill and plans to sign it.

The lingering threat of Covid-19 and the focus on sick days in last year’s rail worker labor dispute have helped intensify the effort by advocates and policymakers to increase workers’ access to paid time off. But state and local lawmaking is likely to be the center of the action for now. Democrats in the last Congress failed to convert the Covid-19 paid leave mandate into a permanent federal sick leave policy, and have since lost their majority in the US House.

“Legislatures are turning their attention back to just general paid sick time,” as the emphasis on Covid-specific emergency leave wanes, said Stephanie Mills-Gallan, an attorney with Littler Mendelson P.C. in Milwaukee and co-lead of the firm’s paid sick leave practice. “They want to make sure there’s a baseline protection for workers in the event that something like this happens again, and they are also just recognizing that life happens.”

“The mandatory paid time off laws are an interesting twist,” she said, noting measures like the Illinois legislation raise employer concerns about possible abuses. “The time can be used for any reasons, but that time appears to still have job protections attached to it that a paid sick time law would have.”

‘Thoughtful and Thorough’

An estimated 86% of workers had access to paid sick days at work in March 2022, according to the Bureau of Labor Statistics. But worker advocates argue that laws are needed to guarantee time off, as employers often find ways to discourage workers from taking sick days, including through “no fault” or points-based attendance systems. New York lawmakers sought to tackle the issue last year with a unique protected absences law, which the Illinois paid leave legislation imitates by barring employers from imposing negative points or demerits on workers for using the time off provided under state law.

“This has been a really common issue for folks that has prevented them from taking their leave,” said Vasu Reddy, a senior policy counsel at the National Partnership for Women & Families. “It was really thoughtful and thorough of Illinois to include that.”

The Illinois bill lets employers require seven days of notice from workers before taking time off, but only for time-off needs that are foreseeable, presumably excluding a worker’s or their child’s sickness. The measure protects workers from discipline or retaliation for using time off, and companies have limited ability to ask for documentation of the reason for the absence.

“Someone could call off on a Friday last minute and say, ‘I’m not coming in today. I decided to pick up and go to Vegas,’” and the employer would have little or no recourse, Mills-Gallan said. “The possibilities for misuse or abuse are endless.”

Employers are hoping for guidance from the Illinois Department of Labor to clarify how that provision would be applied and whether businesses will have any power to enforce the seven-day notice, she said.

From workers’ perspective, the limited notice requirement for unforeseeable time off is important, because without it taking time off for unexpected sickness or a child’s school closure would be difficult or impossible, Reddy said.

Broadening Coverage

Fourteen states plus the District of Columbia require private-sector employers to provide paid sick leave, in some cases also making the leave available for reasons such as child-care needs or escaping domestic abuse.

Once Pritzker signs the Illinois bill, his state will join a smaller group that includes only Maine and Nevada requiring similar amounts of paid time off available for any reason. The benefits in Illinois would start accruing Jan. 1, 2024, and workers could start using them 90 days later. The statewide mandate wouldn’t apply to employers covered by paid sick leave ordinances in Chicago and Cook County, Ill.

“Every working Illinoisan knows that sometimes unavoidable circumstances prevent you from doing your job,” Pritzker said in a written statement applauding the bill’s passage on Jan. 11.

Beyond Illinois, Minnesota and Michigan are among the states to watch for potential expansion of paid sick time laws this year, given their newly Democratic-majority legislatures. Minnesota lawmakers are considering legislation that would create a paid sick time mandate for employers. Meanwhile, Michigan’s existing sick leave law is set for a potential expansion brought about by an order that was overturned Jan. 26 by the state Court of Appeals and is expected to be appealed to the state Supreme Court.

Connecticut is a prime candidate to expand its existing paid sick leave law as well, according to Reddy.

Connecticut’s 2012 law was the nation’s first state paid sick leave mandate and was enacted with a limited scope.

“Because this was an early law, there wasn’t a lot of evidence out there about how it was going to work,” Reddy said. The state exempted businesses with fewer than 50 employees and only applied the law to specific service industries such as restaurants. “It didn’t apply to all workers. It was only this small set of public-facing service jobs.”

The issue of whether and to what extent to mandate paid sick days also is a key point in the debate over a California infectious disease rule being developed by the state’s workplace safety agency.

While California already requires paid sick leave, employer groups are concerned about how the state would apply an additional sick pay mandate to cover a wide range of infectious diseases and workplaces ranging from enclosed offices and factories to open-air construction sites and farms.

The regulation is meant to be the long-term replacement to the state’s workplace Covid-19 rule, which is expected to take effect by February and expire at the end of 2024.