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Jon Klinghoffer, a Principal in the firm’s Labor & Employment and Litigation Groups, is quoted in "Illinois Paid Leave Bill Adds New Wrinkle to Legal Patchwork," published in the March 3, 2023, edition of Law360.

The article concerns S.B. 208, or the "Paid Leave for All Workers Act," which Illinois is poised to adopt as law. It guarantees most employees in the state a week's worth of paid time off per year to use however they wish. While the legislation seems straightforward, figuring out how it interacts with existing state and local requirements may prove complicated, experts say.

"If you're going to use your PTO policy to cover this new act, you still have to pay it out when they leave, and that's something people are going to have to get used to."
~ Jon Klinghoffer

The Paid Leave for All Workers Act (PLFAW Act) would apply to private employers in the state of any size as well as state and local government workplaces. There are limited carveouts, but the statute would cover nearly all the employees in the state, allowing them to accrue up to 40 hours of paid leave annually. 

Though he has yet to sign the bill, Gov. J.B. Pritzker issued a statement in January, shortly after state lawmakers approved the measure, saying he would do so. If the governor signs off, the law will take effect Jan. 1, 2024.

If the bill is adopted, Illinois would become one of the few states that guarantees workers paid leave that they can use for any reason, though about a dozen states each have laws that guarantee paid family leave and paid sick time away from work. 

The Law360 article focuses on four things employers need to consider as they prepare for the leave law. 

Mr. Klinghoffer said that if an employer takes the position that it could comply with the PLFAW Act by using its existing PTO policy, the employer couldn't then tell a worker that they wouldn't be paid out for 40 hours or five days of unused PTO if they quit or are terminated.

"If you're going to use your PTO policy to cover this new act, you still have to pay it out when they leave, and that's something people are going to have to get used to," Mr. Klinghoffer added. "You've [also] got to make sure that if you're using the accrual method in your vacation or your PTO policy that it complies with the act, which is one hour for every 40 hours worked."

Besides potential confusion with the Illinois' vacation payout requirement, another compliance challenge facing employers when the paid leave law would become effective is its interplay with sick leave ordinances that Cook County and the city of Chicago have in place.

Under the Cook County Earned Sick Leave ordinance, which took effect in 2017, qualifying employees accrue one hour of sick leave every 40 hours they work. They can take that accrued time for any number of specified reasons, including if they or a family member are ill, to seek mental health care or if a person is the victim of domestic violence, according to guidance from the Cook County Commission on Human Rights.

Employees covered by the county ordinance must wait until they've worked 80 hours during any 120-day period before they can use earned sick time.

Chicago, meanwhile, requires employers in the city to provide one hour of sick leave for every 40 hours worked. The law covers any employee who works for a Chicago employer for 80 hours over a 120-day period, and their earned sick time starts accruing their first day on the job.

Under that law, workers start accruing time on their first day on the job, and can take paid sick leave once they work 80 hours within a 120-day period.

While S.B. 208 won't apply to any employer covered by an existing city or county ordinance that mandates paid or sick leave, businesses in those jurisdictions that don't fall under the ambit of those ordinances must meet the new state-set paid leave floor.

While the PLFAW Act would exempt employers already covered by the ordinances in Cook County or Chicago, Mr. Klinghoffer noted that there are large numbers of businesses in those jurisdictions that aren't subject to the sick leave mandates.

That's because the Cook County ordinance contains a mechanism that allows municipalities to opt out, and employers in jurisdictions that lawfully opted out have no earned sick leave obligation to workers. But the PLFAW Act contains no opt-out mechanism.

"What's interesting in Cook County is most of the municipalities have opted out of that law," Mr. Klinghoffer said. "So those employers in municipalities within Cook County that have opted out of [the county's] sick leave ordinance are going to be covered and need to be aware of the state law and comply with it."