On August 19, 2016, Governor Rauner signed HB 6162, the Employee Sick Leave Act (the Act), permitting an employee to use “personal sick leave benefits” for family care purposes. The Act, which takes effect on January 1, 2017, provides little direction as to what type of “paid time off” is excluded, but the language and amendments provide some guidance.

The Act provides that an employee may use “personal sick leave benefits” provided by the employer for absences due to an illness, injury or medical appointment of the employee's child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent (for purposes of this Article, hereinafter “immediate family”). If the employee is permitted to use certain benefits for their own illness or injury, the employer may be required to allow an employee to use those benefits for family care purposes. The Act does not define the maximum amount of time an employee may use these benefits, but an employee is allowed to use it “for reasonable periods of time as the employee's attendance may be necessary.”

The Act defines “personal sick leave benefits” to mean “time accrued and available to an employee to be used as a result of absence from work due to a personal illness, injury, or medical appointment.” But, the Act “does not include absences from work for which compensation is provided through an employer’s plan.” According to legislative history, “personal sick leave benefits” appear to exclude benefits such as short-term disability or long-term disability, as evidenced by the legislator’s deletion of the phrase “short or long-term disability plan” from a prior text. Therefore, what read as “. . . but does not include absences from work for which compensation is provided through an employer’s plan including, but not limited to, a short or long-term disability plan” was finalized as “. . . but does not include absences from work for which compensation is provided through an employer’s plan.”

The Act allows employers to limit the use of personal sick leave benefits for absences due to an illness, injury or medical appointment of the employee’s immediate family “to an amount not less than the personal sick leave that would be accrued during six months at the employee’s then current rate of entitlement.” In other words, even if an employee has accrued more than six months of personal sick leave that they may use for their own illness or injury, an employer may cap the amount of benefits used for family care. The Act does not require employers that already have paid time off policies that provide the required leave to modify any policies. The Act does not appear to change an employer’s legal obligation to pay certain benefits once an employee separates from employment. Under the Wage and Payment Collection Act, 820 ILCS 115/1, an employee is not entitled to sick pay or holiday pay upon separation, unless the employer has promised the pay in an employment contract or other agreement.

The Act incorporates an anti-retaliation provision, which prohibits an employer from denying an employee the right to use personal sick leave benefits in accordance with this Act or retaliating against an employee for using personal sick leave benefits, attempting to exercise the right to use personal sick leave benefits, filing a complaint with the Illinois Department of Labor, cooperating in an investigation or prosecution of an alleged violation of this Act, or opposing any policy or practice or act that is prohibited by this Act.

The Act becomes effective on January 1, 2017, and mandates that the Illinois Department of Labor issue rules to implement the Act. In the meantime, employers should:

• Review paid leave policies to determine whether such benefits will apply to immediate family care
• Identify manuals and policies that will require revisions to comply with the Act
• Consider how paid leave benefits will be tracked, for an employee’s care of an immediate family member as opposed to an employee’s own injury or illness

Stay tuned for further developments.