Karen Kidd Sep. 8, 2016, 10:20pm

SPRINGFIELD – Illinois employers should prepare for the state's new Employee Sick Leave Act, which allows employees to use paid personal sick leave benefits to take care of family members, two labor and employment attorneys in a recent interview.

Employers will need to track that time off, said Stacey Smiricky, a partner with Faegre Baker Daniels in Chicago who focuses her practice on employment litigation and commercial disputes and litigation.

"We expect that employers will have to 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," Smiricky said. "An employee cannot use more than six months of accrued personal sick leave benefits to care for an immediate family member."

The Employee Sick Leave Act does not define the maximum amount of time in which an employee must use those benefits, said Faegre Baker Daniels Associate Sylvia B. St. Clair.

"But an employee is allowed to use it 'for reasonable periods of time as the employee's attendance may be necessary,'" Smiricky said, citing the law. "Therefore, employers will want to make sure they update their attendance policies."

The Employee Sick Leave Act, House Bill 6162, passed both houses of the Illinois General Assembly with bipartisan support May 31 and was signed into law by Gov. Bruce Rauner on Aug. 19.

The new law takes effect Jan. 1.

The state act is not the only piece of employee paid leave benefit legislation with which employers will have to grapple starting next year. Starting July 1, employers in Chicago will be required to provide paid sick leave to employees under a city ordinance passed earlier this year.

Unlike the Chicago ordinance, the Illinois Employee Sick Leave Act provides for employees to take personal leave not only for their own illnesses, but to take care of members of their family. The act was written to provide workplace flexibility to family caregivers and enjoyed widespread support by healthcare and senior citizens advocacy groups, including the American Association of Retired Persons (AARP).  

The act's definition of a family member includes an employee's child, spouse, sibling, grandchild, in-law, grandparent or stepparent. The act includes provisions to allow an employee to use personal accrued sick leave benefits to provide care for a family member’s illness, injury or medical appointment.

The act also lays down the conditions and polices under which an employer's provided sick leave benefits would continue to apply, with flexibility that does not conflict with employee rights under the federal Family and Medical Leave Act, Illinois family leave law, or any employer’s existing disability plan.

Part of the difficulty employers might face under the act is that not all family illnesses or injuries for which an employee would use personal accrued sick leave benefits would result in documentation, St. Clair said.

"Some statutes allow an employer to request a health certification or return-to-work certification after an employee has taken a leave for his or her own medical condition," she said. "However, employers should proceed cautiously in asking for documentation from an employee’s family member."

Employers also are prohibited from interfering with, restraining or denying an employee’s attempt to exercise any rights under the act, Smiricky said.

"That does not mean, though, that employers are prohibited from taking action against employees who are misusing their sick leave," she said.

More worrisome for employers is that the act could possibly create additional litigation risks, Smiricky said.

"Employees could file a complaint with the Department of Labor if the employer does not allow them to use their sick leave to attend to family members," she said.

To reduce their risk of litigation under the act, Illinois employers should review regulations that the Illinois Department of Labor is expected to issue soon, Smiricky said. Meanwhile, there are other steps employers can take, she said.

For instance, Illinois employers should review their paid leave policies to determine whether such benefits already apply to immediate family care.

"Not every employer will need to modify their current paid leave policies," Smiricky said. "However, if a policy only applies to the employee, the policies will need updating."

Employers also should identify manuals and policies that will require revisions to comply with the Act, St. Clair said.

"Consider how leave time will be approved, whether it varies depending on whether it is the employee’s or family members’ illness, injury, or medical appointment, and whether there are guidelines in place for those who exercise discretion," she said. "Anti-discriminatory practices should be emphasized."

Decisions on payout of benefits will also be important, Smiricky said.

"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, and whether the employer will pay out such benefits upon an employee’s separation," she said.

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