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The Chicago City Council recently passed Ordinance No. 02021-2182 (the Ordinance), which, among other things, expands the permissible bases to take leave under the Chicago Paid Sick Leave Ordinance (PSLO) and creates new wage theft protections for employees. The paid sick leave amendments take effect on August 1, 2021, while the wage theft provisions went into effect on July 5, 2021.
New Paid Secured Leave Under the PSLO Effective August 1, 2021
Under the PSLO, any covered employee who works at least 80 hours for an employer within any 120-day period is eligible for paid sick leave. A “covered employee” is defined as an employee who in any particular two-week period performs at least two hours of work for an employer while physically present within the geographic boundaries of Chicago.
Under the Ordinance, paid “sick leave” is renamed to be “paid secure leave,” and other permissible bases have been added for covered employees to use paid secured leave. The Ordinance defines paid secured leave as “time provided by an employer to a covered employee that is eligible to be used [for the reasons below], and is compensated at the same rate and with the same benefits, including health care benefits, that the covered employee regularly earns during hours worked.”
The chart below identifies the prior bases under the PSLO under which a covered employee was permitted to use paid leave, and effective, August 1, 2021, the new, additional bases (in bold) a covered employee can use paid secure leave:
| Prior Permissible Bases to Use Paid Sick Leave (1-24-045(c)(2)) | Effective August 1, 2021, New Permissible Bases to Use Paid Secured Leave (6-105-045(2)) |
| 2(A). The covered employee is ill or injured, or for the purpose of receiving medical care, treatment, diagnosis, or preventive medical care | 2(A). The employee is ill or injured, or for the purpose of receiving professional care, including preventive care, diagnosis, or treatment, for medical, mental, or behavioral issues, including substance abuse disorders |
| 2(B). A covered employee’s family member is ill or injured, or to care for a family member receiving medical care, treatment, diagnosis, or preventive medical care | 2(B). A covered family member is ill or injured, or ordered to quarantine, or to care for a family member receiving professional care, including preventive care, diagnosis, or treatment, for medical, mental, or behavioral issues, including substance abuse disorder |
| 2(C). The covered employee, or a covered family member, is the victim of domestic violence or a sex offense | 2(C). The employee, or a covered family member, is the victim of domestic violence or a sex offense or trafficking in persons |
| 2(D). The covered employee’s place of business is closed by order of a public official due to a public health emergency | 2(D). (No change) |
| 2(D). The employee needs to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency | 2(D). The employee needs to care for a family member whose school or place of care has been closed by order of a public official due to a public health emergency |
| (New reason) → | 2(E). An employee obeys an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, or a treating healthcare provider, requiring the employee: (i) to stay at home to minimize the transmission of a communicable disease; (ii) to remain at home while experiencing symptoms or sick with a communicable disease; (iii) to obey a quarantine order issued to the employee; (iv) or to obey an isolation order issued to the employee |
| Federal Family and Medical Leave Act | (No change) |
Chicago employers should review their handbooks to amend their paid sick leave policies to include the new additional bases for leave.
Wage Theft Protections for Covered Employees Effective July 5, 2021
The Ordinance also provides a “covered employee” (defined the same as above) with protections against wage theft from their employers. Under the Ordinance, any employer that does not timely pay a “covered employee” in accordance with the Illinois Wage Payment and Collection Act (IWPCA) commits “wage theft.” The Ordinance defines “wage theft” to include the non-payment of: (a) any wages required for work performed; (b) paid time off, whether legislatively or contractually required; and (c) contractually required benefits to a covered employee. The IWPCA generally mandates that an employer must pay its employees all earned wages no less than twice per month and must pay separated employees all final compensation no later than the next regularly scheduled payday.
Under the Ordinance, if covered employees believe their employers have committed wage theft, they may now file a wage theft claim with the Office of Labor Standards or in court, but not both. A covered employee who files a wage theft claim with the Illinois Department of Labor (IDOL) may not also file a claim with the Office of Labor Standards, unless the IDOL referred the case to the Office of Labor Standards.
If it is determined that an employer has violated the Ordinance, the employer is liable for the amount of the underpayment and either: (a) 2 percent of the amount of any underpayments for each month following the date of payment during which the underpayments remain unpaid; or (b) the amount specified by the IWPCA, if the amount in the IWPCA is greater. Importantly, the penalty amount specified in the IWPCA for violations recently was increased from 2 percent, to 5 percent per month for underpayments, so the IWPCA rate will apply.
Chicago employers should take these new wage theft protections seriously, as on July 29, 2021, Mayor Lightfoot issued a press release applauding the city’s efforts in recouping $935,000 from two employers for PSLO violations.