Over the course of the year, we have received a number of questions from our clients about Illinois’ various new Paid Leave laws. In this article, we are going to present and address some of the most commonly asked questions we have been receiving.

Q: We only have a few employees, are we exempt?

No. Each of the three leave laws is focused on whether a person is an employee, not on the size of the employer.

Q: Do I have to pay an employee for unused Paid Leave when they quit?

Maybe. On their own terms, Paid Leave required by the PLAWA and the Cook County Ordinance do not require you to pay an employee their unused Paid Leave upon separation. The City of Chicago Ordinance, however, will force you to determine whether you are a small, medium, or large employer to determine whether you have to pay out any unused Paid Leave at separation.

On the other hand, the PLAWA and Cook County Ordinance do require you to pay out unused Paid Leave if you charge or credit Paid Leave from or to a paid time off bank. In other words, if you just add the Paid Leave to your employees’ vacation, sick, or PTO bank, then you will have to pay that unused time out at separation.

The analogy I use to explain this is that PLAWA and Cook County Paid Leave is like water: as long as it remains unmixed, it’s still just PLAWA/Cook County Paid Leave. Your existing sick leave or vacation leave or other forms of PTO are like ink. If you mix the PLAWA leave with other PTO, it all takes on the character of the PTO. So by continuing to treat the PLAWA leave as “paid sick leave” or “PTO”, it all gets treated like “paid sick leave” or “PTO” at the time of separation, which will likely be treated as an earned benefit that must be paid to employees under the Wage Payment and Collection Act.

Best practice is that if you are using an existing form of leave (whether it is vacation, sick, or PTO) and Paid Leave pursuant to your applicable law, keep them completely separate! Give your employees the right (and obligation) to tell you what kind of leave they intend to use and only charge from that pool of leave. If you start to mix the leaves together, you run the risk of “staining” the Paid Leave and making it compensable.

Q: Our business is outside of Chicago, but we have an employee who sometimes goes into Chicago to work. What law do we have to follow?

Most likely the Chicago Ordinance applies to the employee. The Chicago Ordinance defines a “covered employee” as an employee who performs at least eighty hours of work while physically present within the City within a 120-day period. If they are performing compensable travel time (i.e. they leave your home office and drive into Chicago for a specific task, etc.), that counts the travel time towards the “80 hours. So any employees who have to go into the City of Chicago for a work related task likely will qualify under the Chicago Ordinance.

The Ordinance does not include non-compensable commute time, though, so an employee who lives in Chicago and drives out of Chicago to come to your office may not be covered, so long as their job duties are not being performed in Chicago. Note that once an employee becomes “covered” under the Chicago Ordinance, they will remain covered for the remainder of their employment, even if their job duties stop requiring them to go into Chicago.

Q: Can I have vacation leave and sick leave still, or do I have to use only the generic Paid Leave?

You may retain your existing forms of paid time off, so long as your employees are also getting paid time off that meets the requirements of the laws. However, maintaining separate forms of leave might come with more bookkeeping requirements. Paid Leave under these laws is separate from vacation leave, sick leave, or general PTO. If you are going to maintain preexisting leave under an old policy, you need to make sure that you are still providing your employees with leave that satisfies the laws. If you are going to offer your employees both Paid Leave and another form of vacation, or sick, or PTO time, you can keep your old policies for the old forms, while having compliant policies for the Paid Leave required by law. If you intend to keep multiple types of leave, best practice is to maintain separate records for each type of leave, to allow the employee to choose what kind of leave they want to use whenever they take leave, and to be on top of what balances the employee has used or remain unused.

If you are uncertain whether your current leave complies with the requirements of these laws, we are more than happy to review your policies for you!

Q: I give all of my employees 40 hours of sick leave, can I just use that to cover Paid Leave?

Maybe. When we use the term “sick leave” we have certain assumptions about how that gets approved and taken. Some employers have notice requirements, require an explanation for why the leave is being used, require documentation to prove that the employee was sick, or require them to find a replacement for their shift. Some of those policies might overstep. If your sick leave policy is truly “no questions asked”, it may comply, though you want to review the laws and ensure that you are not overstepping any of their boundaries.

Be aware that because the City of Chicago Ordinance provides for both general Paid Leave and Paid Sick Leave, it does allow some extra confirmation when an employee is redeeming their Paid Sick Leave.

Q: My employee wants to take a vacation and use some of their Paid Leave and some of their vacation time to cover it, what do I have to do?

You have to let them. You can separately apply your policies to each type of leave, but there is nothing that prevents your employees from consecutively taking leave. Be sure to get proper documentation of how much of each type of leave the employee is taking. There is nothing improper or dangerous about an employee taking two days of Paid Leave to cover Monday and Friday, and three days of vacation to cover Tuesday, Wednesday, and Thursday. However, if you have policies about how employees may take vacation days, you can apply those to the request for the vacation time, while applying the rules for Paid Leave to the request for Paid Leave.

Notice and finding a replacement tend to be the big controversies in this scenario. If your employee is submitting this request in violation of your policies (for example, they did not give enough notice for the vacation portion of the leave), you can still deny the vacation part of the request! You may still have to grant the Paid Leave portion of the request so long as it meets the policies that allowed for Paid Leave, but you can keep your employees from gaming the system by rigorously (and uniformly) enforcing your policies for other types of leave.

Q: Can I still require advanced notice or retain the right to deny vacation leave?

Yes, though maybe not under the terms you want. The laws provide very narrow rules on requiring notice, and even narrower rules on when you can deny a request for Paid Leave. However, if you are independently tracking all of the different types of leave, you are in a better position to treat vacation leave like vacation leave, up to requiring notice and grounds for denying requests, while applying the rules specific to Paid Leave to only that type of leave.

We know that these changes are massive and confusing, and are here to answer your questions and try to narrow down the issues for you to help tailor your answer to your business. Please do not hesitate to contact us if this remains problematic or confusing for your business.

Questions? Contact John Simmons by email or at 563-333-9102