Cook County Paid Leave Ordinance Updates: School and Park Districts Exempt for Now, Final Draft of Proposed Rules Passes
On March 14, 2024, the Cook County Board of Commissioners passed an amendment to the new Cook County Paid Leave Ordinance and approved the final draft of proposed rules under the Ordinance. The new amendment, effective immediately, postpones the implementation of the Ordinance for public school districts and park districts until January 1, 2025. The new rules clarify certain employee rights and employer responsibilities under the Ordinance. The County is also contemplating issuance of additional procedural rules governing park districts and school districts.
Tracking closely with the new Illinois Paid Leave for All Workers Act (PLAWA), the Cook County Paid Leave Ordinance, which went into effect on December 31, 2023, requires employers to annually provide employees a minimum of 40 hours of paid leave “for any reason of the employee’s choosing,” accruing at a rate of at least 1 hour paid leave for every 40 hours worked. The Ordinance applies broadly to nearly all employees in Cook County including domestic workers, though it excludes certain higher education and federal railroad employees.
Temporary exemption for public school and park district employers
Like the Illinois PLAWA, the Cook County Ordinance adapts the definition of “employer” from Sections 1 and 2 of the Illinois Wage Payment and Collection Act, which includes:
any individual, partnership, association, corporation, limited liability company, business trust, employment and labor placement agencies where wage payments are made directly or indirectly by the agency or business for work undertaken by employees under hire to a third party pursuant to a contract between the business or agency with the third party, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, for which one or more persons is gainfully employed (820 ILCS 115/2).
However, while the Illinois PLAWA expressly exempted public school district and park district employers from its requirements, the Cook County Ordinance did not. This lack of exemption for school and park districts prompted pushback in January by suburban school districts who criticized the unfunded mandate and the unique administrative, financial, and operational burdens that the Ordinance would place on them, including districts that straddled multiple counties. In response to these lobbying efforts, several Commissioners proposed changes to the Ordinance’s definition of “employer.” Under the amendment that was passed on March 14, the Ordinance now temporarily exempts “school districts organized under the Illinois School Code or park districts organized under the Illinois Park District Code,” but only until January 1, 2025. After that date, public school and park districts are expected to comply with the Ordinance. While the County maintains that it has authority to regulate paid leave for public school districts, some school districts have asserted that the County lacks authority to regulate leaves of absence for school district employees.
Overview of the final procedural rules
The final draft of the Cook County Paid Leave procedural rules, also approved at the March 14 Board meeting, further defines and clarifies employee rights and employer responsibilities under the Ordinance. The rules explain how employers should implement the various paid leave methods, develop policies and procedures, and comply with posting, payout, record-keeping, and other requirements under the Ordinance. The rules also make clear that the Ordinance does not apply to any municipality within the County that has enacted a law that (1) provides paid leave “in an amount and manner” that is as or more generous than the Cook County Ordinance, and (2) provides remedies against an employer that fails to provide such benefits. Other key points are highlighted below.
Definition of employee
Section 310.100 defines “employee” as an individual who performs compensated work while physically present within the geographic boundaries of Cook County. Such work must constitute at least 50% of the employee’s total compensated work for the employee to receive paid leave benefits under the Ordinance. Work performed within the geographic boundaries of a municipality that has lawfully preempted the Ordinance does not count. The rules also make clear that the Ordinance applies equally to full-time, part-time, seasonal, short-term, and other categories of workers.
Notable exemptions
The rules clarify that employees are exempt from the Ordinance if they are covered by a bona fide collective bargaining agreement that was entered into before December 31, 2023, or if they explicitly waived their rights under the Ordinance in a collective bargaining agreement that was entered into after December 31, 2023.
Under the notification requirement, the rules emphasize that a place of business will not be considered within Cook County’s geographic boundaries if it is also within a municipality’s boundaries that has lawfully preempted the Ordinance.
Employer methods for calculating paid leave
Section 400.100 states that employers are required to provide employees with a written policy that outlines which paid leave methods are being used by the employer (i.e., accrual, front-loading, and/or some combination thereof) and which paid leave method applies to each employee group (full-time, part-time, etc.). For employers using an accrual method, the rules explain how to determine an employee’s date of initial accrual and how to calculate accrued paid leave for overtime-exempt and overtime-eligible employees. One point to note is that while paid leave accrues continuously up to the cap, an employer is not required to award paid leave in increments of less than one hour unless the employer chooses to do so.
The rules also explain how an employer can implement front-loading and mixed calculation methods in ways that comply with the Ordinance. For example, an employer can comply with the ordinance by awarding an employee who plans to work 1,040 hours during the year a total of 26 hours of paid leave at the beginning of the leave year. If the employer cannot accurately predict an employee’s total work hours, it may estimate the employee’s hours and front-load the employee’s leave at the start of the year, and then “true up” the employee’s leave if the employee works more hours than estimated. However, an employer may not retroactively reduce the amount of paid leave provided to an employee. If an employer front-loads an employee’s leave, it must notify the employee of the number of hours of leave provided on or before the employee’s first day of work.
Regardless of the methods used, employers should always provide appropriate notice to employees and maintain clear and up-to-date documentation of all hours worked and paid leave hours earned and/or provided. If an employer “cannot produce a copy of the written Paid Leave policy…Employees may use Paid Leave pursuant to the Ordinance without providing prior notification and without discipline” (Section 500.300).
Use and denial of paid leave
The rules specify that employers may establish reasonable policies requiring employees to provide notice of foreseeable paid leave not more than seven days in advance of the leave. When an employee uses leave for unforeseeable reasons, the employee can be required to provide notice as soon as practicable after the employee learns of the need for leave. Employees must be permitted to provide notice of an unforeseeable leave via phone, e-mail, or text message. However, an employer can later require an employee to document their use of paid leave using the employer’s preferred method in order to facilitate recordkeeping.
However, even if an employee fails to provide notice as required by the employer’s policy, the employee must be allowed to use paid leave unless:
- The employer’s paid leave policy is disclosed to the employee in writing,
- Restrictions on an employee’s use of paid leave is limited to the employee’s regular work week, and
- The employer’s paid leave policy establishes limited circumstances in which paid leave may be denied to meet the employer’s “core operational needs” for the requested period. Relevant factors include:
- Whether the employer provides a need or service “critical to the health, safety, or welfare of the people of Cook County;
- Whether similarly situated employees are treated the same for the purposes of reviewing, approving, and denying paid leave; and
- Whether granting leave during a particular time period would “significantly impact” business operations due to the employer’s size.
Payout of paid leave
In general, employers are not required to pay employees for accrued, unused paid leave under the Ordinance. However, if an employer complies with the ordinance by granting employees paid vacation or paid time off bank under a separate employer policy, employers must pay employees for that accrued leave within fifteen days of the employee’s separation from employment.
We will continue to provide updates on the Cook County Ordinance as needed. For those in Chicago or in Illinois outside of Cook County, feel free to reach out to us with any questions you might have about the Chicago paid leave ordinance or the Illinois PLAWA.