On April 24, 2017, Clark Hill wrote about the proposed regulations that the Cook County Commission on Human Rights (the "Commission") drafted regarding the Cook County Earned Sick Leave Ordinance (the "Ordinance"), which was passed on October 5, 2016 and will take effect on July 1, 2017. On May 25, 2017, the Commission approved and finalized its "Interpretive and Procedural Rules" (the "Rules") governing the Ordinance and a sample earned sick leave poster that covered employers are required to post in a conspicuous area within each of their Cook County locations. While the City of Chicago passed a virtually identical paid sick leave ordinance on June 22, 2016, which will similarly go into effect on July 1, 2017, unlike Cook County, the City of Chicago has not yet issued any regulations for their ordinance.

The Rules do not change the substance of the Ordinance itself. Still in effect is the Ordinance's main provision that covered employees (i.e. employees who have worked at least two hours in any two-week period for a covered employer in Cook County) may earn up to 40 hours of paid sick leave each year. What has changed with the issuance of these final Rules, however, are certain key provisions under the prior proposed regulations that interpret and govern the enforcement of the Ordinance. Below is a summary of those changes.

Telecommuter's Location as an Employer's "Place of Business"

Section 320.100(A) "Place of Business" discusses which employer locations the Commission will consider in determining whether that employer is a covered employer (i.e. an employer who has at least one covered employee and has at least one place of business in Cook County) under the Ordinance. The proposed regulations determined that if a covered employer requires or permits an employee to telecommute from a location within Cook County, and the covered employer transacts significant business with customers in Cook County through the employee, the location from where the employee telecommutes would be considered the covered employer's place of business in Cook County. That has now been changed under the finalized Rules. The Commission will not consider a location within Cook County from which an employee telecommutes to be a covered employer's place of business unless the covered employer requires the covered employee to work at that location. 

Employer Locations in a Municipality that Has Opted Out of the Ordinance

Section 320.100(B) "Location of Business" explains where a covered employer's place of business must be located for the purpose of determining whether the employer is a covered employer. The proposed regulations did not consider an employer to have a "place of business" within any municipality that has opted out of the Ordinance. The Rules now permit for the Commission to now do so. Indeed, the Commission may consider any place of business within Cook County in determining whether the employer is a covered employer, regardless of whether the municipality in which the place of business is located has chosen to opt out of the Ordinance. However, this does not mean that those employers located solely in a municipality that has opted out will be subject to the Ordinance. 

Date of Initial Accrual

Section 400.100 "Date of Initial Accrual" discusses when a covered employee begins to accrue earned sick leave. The proposed regulations instructed that a covered employee begins to accrue earned sick leave after the later of (a) July 1, 2017; or (b) the first calendar day after the covered employee's start date. The Rules add a new a new potential date of accrual: the covered employee's "date of coverage." The Ordinance defines "date of coverage" as the first day in which an employee meets the criteria to be a covered employee -- the date on which the employee has reached at least two hours of work in any two-week period for a covered employer in Cook County.

Accrual Period

Section 400.300 "Accrual Period" explains which 12-month accrual period a covered employer may use when awarding earned sick leave to a covered employee. The proposed regulations stated that covered employers could implement an individualized accrual period that varied from covered employee to covered employee based on the employee's date of accrual. Alternatively, covered employers could use a standard accrual period that was the same for all employees. The Rules remove the option of having a standard accrual period and instruct that covered employers utilize an accrual period that commences on the covered employee's date of initial accrual, stops once the covered employee reaches the accrual cap (i.e. 40 hours of earned sick leave), and then repeats annually. The Rules caution against using one standard benefit year (e.g. calendar year or fiscal year) for all current and new employees because a new employee may lose sick time to which he or she might otherwise have been entitled.

PTO Policy

Section 600.300(D) "Equivalent Practices" discusses how covered employers with existing sick leave policies can modify their policies to be in compliance with the Ordinance. The Rules now offer guidance to covered employers with PTO policies on how to provide the minimum amount of acceptable earned sick leave to and still be compliant with the Ordinance.

Notice 

Section 700.200 "Notice of Rights Required" describes when covered employers must provide covered employees with notice of their rights under the Ordinance. The proposed regulations stated that covered employers were to provide notice by the later of the covered employee's date of coverage or date of eligibility (i.e. the first date upon which a covered employee works 80 hours within any 120-day period). This directive remains the same under Rules, but now includes one additional requirement. Covered employers have a continuing duty to provide notice to all covered employees at least once per calendar year. The link to the Commission's model notice is above.

Prohibited Practices

Section 900.100 "Prohibited" identifies certain practices that are expressly prohibited under the Ordinance. The Rules clarify that a covered employer is not prohibited from requiring a covered employee to exhaust accrued sick leave during any unpaid leave of absence.

Permissible Practices

Section 900.200 "Permissible" identifies certain acts that the Commission will not consider to be a violation under the Ordinance. The Rules now offer the following examples of potential actions that are not violations including, denying a covered employee's request for sick leave for a foreseeable purpose (e.g. previously scheduled court appearance) when the covered employee did not provide reasonable notice; disciplining a covered employee who fails to provide proper notice as set forth under a written policy; and disciplining a covered employee who used sick leave for an impermissible purpose.

Statute of Limitations for a Covered Employee to file a Claim with the Commission

Section 1020.100 "Time Limit for Filing Complaints" sets forth the time period in which a covered employee is required to file a complaint with the Commission regarding a known violation by a covered employer. The proposed regulations provided that a covered employee has two years from the date of the alleged violation to file a complaint with the Commission. The Rules changes this to three years from the date of the alleged violation. Under this Section, the Rules also permit a covered employee to file a claim in state court even if the claim is barred at the Commission because the three-year statute of limitations has passed. 

Remedies for Violations

Section 1030.100 "Fines" describes the penalties the Commission may impose on covered employers for violating the Ordinance. The proposed regulations stated that the Commission could impose fines of up to $1,000.00 per violation per covered employee.  The Rules decreases this amount to $500.00. 

Now that the Commission has finalized the Rules, covered employers should review and become familiar with them prior to the Ordinance taking effect on July 1, 2017. Clark Hill is ready to help any employer who may have concerns regarding their existing sick leave and/or PTO policies, and can assist in modifying and/or creating such policies to be compliant with the Ordinance.