Employers are not required by federal or state law to provide vacation benefits to their employees. The key is to ensure that the employer’s policy clearly states the employer’s requirements for vacations and vacation pay and is communicated to all employees.
The employer also may place reasonable limitations on when employees can take vacation, for example, by requiring employees to take one week of vacation during the annual plant shutdown or the two‑month slow period.
Employers may prohibit employees from accumulating vacation over time rather than taking it. For example, an employer may require an employee to use all vacation by a certain date or limit the amount of vacation an employee may roll over from year to year. An employer may require an employee to use vacation within a set period (such as a calendar year) and, if the employer allows the employee to accrue vacation, may place a limit on the amount of vacation carried over from one time period to the next. However, this can vary from state to state, and employers with employees in multiple states should consult state law.
Unlike some states, Illinois treats vacation pay as wages if the employment contract or agreement provides the employee the opportunity to accrue paid vacation time. Therefore, Illinois requires that any accrued but unused vacation time that is earned pursuant to an employment agreement or policy needs to be paid to employees upon their termination of employment.
One way of controlling the amount of accrued vacation pay that the employer ultimately must pay is for the employer – in its employee handbook – to designate the relevant accrual period and state that vacation will not be earned until the end of that period.
For example, if the accrual period were one year and vacation was not earned until the end of the accrual period, then an employee who worked three (or even 11) months would not be entitled to vacation, but an employee who passed his or her anniversary date would be entitled to a full 12 days (or whatever period is appropriate) of paid vacation.
Personal days are days provided to the employee by the employer for his or her own use (for example, caring for a sick child, staying home to monitor workmen doing home repairs, etc.). Nothing in federal or Illinois law requires employers to provide personal days to their employees. Indeed, in light of attendance concerns and the abundance of legally required time off, many employers choose not to designate yet another opportunity for employee absence. It may make even less sense to designate personal days as paid days off in view of the fact that most employees will then consider the benefit akin to vacation time, leaving only the most conscientious of employees to use the benefit only when truly needed. Some employers will allow employees to use vacation or sick pay to cover “personal” absences. Yet others will group all time off under a “paid time off” policy, which allows the employee to manage his or her time off and decide whether to use the days for vacation, sick, or personal reasons.
If the employer does elect to adopt a policy providing solely for paid or unpaid personal days, the policy should be in writing and enforced consistently across the company. The policy should explain how personal days are earned, the conditions for the use of such days, and any limitations on when such days may be used.
As with vacation pay and personal days, there is no legal requirement in Illinois to offer employees sick days except as required under the federal FMLA (discussed herein). There is no requirement under either federal or state law that the employer pay for these days off. However, the employer should consider the possible loss of the salaried exemption under the FLSA if an otherwise salaried‑exempt employee loses pay for sick days without an opportunity to have those days paid (by accrual or otherwise) under the employer’s benefit or compensation policies. The employer should also consider the economic climate, market conditions and company culture in deciding whether, and how many, sick days to offer. As noted previously, a paid time off policy is often used as an alternative to traditional “sick” leave.
The Illinois Employee Sick Leave Act does not establish a minimum sick leave benefit but, if an employer offers sick leave, it does allow employees to use accrued sick leave to care for a family member. Under the statute, an employee may use up to half of his or her accrued sick leave for absences related to the illness, injury or medical appointments of a family member. The term “family member” is defined to include the employee’s child, spouse, domestic partner, sibling, parent, mother or father-in-law, grandchild, grandparent or stepparent. The statute became effective on January 1, 2017.
Additionally, on July 1, 2017, ordinances in both the City of Chicago and Cook County became effective that establish minimum paid sick leave benefits. In Chicago, the Chicago Minimum Wage Ordinance was amended to provide eligible employees up to 40 hours of paid sick leave during each 12-month period. The eligibility threshold is relatively low: an employee need only:
To qualify as a “covered employer,” an entity must maintain a business facility within the city limits or be subject to any of the city’s licensing requirements. There is no minimum employee threshold. The leave provided is not in addition to any leave already provided by an employer, but any plan already in place must meet the ordinance’s minimum requirements. Qualifying employees accrue one hour of leave for every 40 hours worked.
The Cook County Earned Sick Leave Ordinance largely mirrors Chicago’s ordinance. A covered employee is anyone 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 Cook County. Because Cook County encompasses the suburbs surrounding Chicago, a significant number of additional employees will qualify for the benefit. As with the Chicago ordinance, employees can carry over 20 hours of accrued, but unused sick leave into the following year.
Note: If the employer is subject to the federal Family Medical Leave Act, the carryover limit is raised to 40 hours.
Employers with sick leave or PTO policies should ensure that the benefit provided under such policies complies with these new legal requirements. If an employer does not have a sick leave policy, it should put in a policy that is at least compliant with the above provisions if applicable. Any such policy should be clearly written and contain detailed terms so that employees understand the nature and limitations of the benefit.
With an ever‑increasing emphasis on flexibility and accommodation in the workplace, many employers are beginning to offer paid time off (PTO), paid leave bank (PLB), or similar benefits to employees instead of paid vacation, sick days, and personal days. Such a policy offers employees greater freedom to enjoy PTO in a manner that reflects their own personal values, commitments, and lifestyle choices. More importantly, the policy eliminates the need for the employer to police – and the incentive of the employee to fabricate – the reasons an employee uses to take time off.
The decision to use a conventional vacation/sick days/personal days policy or to adopt a more progressive PTO or PLB policy must be made by each employer based upon the particular human resource philosophy and management style of the business. The law does not prefer one approach more than another. However, if an employer does elect to use a PTO or PLB policy, the employer should be prepared to pay employees for all earned but unused PTO upon termination of employment on the same basis as payments must be made for earned but unused vacation benefits as described previously.
There is no obligation under either federal or Illinois law to pay employees for holidays or to pay a premium for work performed on holidays. If the employer does choose to provide the benefit to employees, it makes good practical sense to put the policy in writing to avoid confusion and enhance employee morale. Additionally, once a holiday is designated as a “paid” holiday, Illinois law treats it the same as vacation pay in that it must be paid out upon termination if accrued. Employers should designate in advance:
All employers covered by the Family and Medical Leave Act (FMLA) – private employers who employ 50 or more employees within a 75-mile radius during each of 20 or more calendar workweeks, and public employers (irrespective of the number of employees employed) must include in any written guidance to employees, such as an employee handbook or personnel manual, information concerning employee rights and responsibilities under the FMLA, as well as an explanation of the employer’s policies concerning the FMLA. The sample policy is designed to satisfy that requirement.
The sample policy summarizes for the reader the key aspects of the FMLA, such as the requirements for employee eligibility, the reasons for which an FMLA‑protected leave may be taken, the statutory definition of “serious health condition,” an employer’s obligation to continue group health plan coverage and to reinstate employees on FMLA leave, and the employee notice and health‑care provider certification requirements. The sample policy also contains examples of several policy choices that employers must make in administering the FMLA.
For example, the sample policy defines the FMLA leave year as the year beginning on the date in which the employee first takes any FMLA‑protected leave. Employers have broad discretion in defining the 12‑month leave year, provided that they employ the same method for all employees. Employers may define their FMLA leave year as the calendar year, the company’s fiscal year, the year beginning on the employee’s anniversary date of employment, or the date on which the employee first takes any FMLA‑protected leave. The employer also may elect to use what the FMLA regulations define as a rolling leave year, in which the employer measures backwards 12 months from the date the employee takes any FMLA leave. Whichever method is selected, the leave year should be defined in the employer’s policy.
Employers also have discretion regarding whether to require employees to take any accrued and unused paid vacation leave, personal leave, PTO, or, if applicable, family or sick leave, in lieu of taking unpaid leave under the FMLA. If the employer requires the employee to take such paid leave, that leave may be counted contemporaneously towards the employee’s 12 weeks of FMLA leave. The benefit of such a policy to an employer is that the employee cannot “stack” paid leave on top of the guarantee of 12 weeks of unpaid leave, providing for an even longer leave period. Information regarding whether the leave time will run contemporaneously should be included in the written FMLA policy.
Another decision that employers must make is the extent to which they wish to impose the notice and health‑care‑provider certification requirements upon employees. The sample policy represents the maximum obligation employers may impose. Some employers, however, may elect to require less of their employees, for example, by requiring only 15-days’ advance notice of the need for FMLA leave rather than 30 (except in cases of emergency). With respect to the health‑care‑provider certification requirement, the U.S. Department of Labor has prepared a form that may be given to employees to be used by their doctors in certifying a serious health condition under the FMLA. Employers may choose to use their own form but relying on the DOL form provides a certain safety net and is recommended to insure compliance with all of the various FMLA regulations.
The regulations issued by the U.S. Department of Labor include a complex and comprehensive definition of serious health condition not fully contained in the sample policy. As explained in the policy, however, a serious health condition is defined as any injury, illness, impairment, or physical or mental condition requiring either inpatient care in a medical facility or continuing treatment by a health‑care provider. Under the regulations, this definition includes any condition requiring an overnight stay in a hospital or other medical facility under the inpatient care portion of the definition. The continuing treatment portion is more broadly interpreted to include conditions requiring treatment by a medical provider and more than three consecutive days’ absence from work, school, or other daily activities; any period of incapacity due to pregnancy or for prenatal care; and chronic serious health conditions, such as asthma, diabetes, and epilepsy, requiring periodic or occasional absences from work. Continuing treatment also includes conditions causing long‑term or permanent incapacity and any period of absence to receive multiple medical treatments from a health‑care provider. Common colds, flu, earaches, and non‑migraine headaches may not be serious health conditions, although with the appropriate number of doctor visits and medications, they may qualify for protection under the statute. Routine physical, eye, or dental examinations are generally not within the scope of the continuing treatment concept.
Additional rules also exist under the FMLA concerning leave rights for highly compensated key employees, the leave rights of spouses employed by the same employer, and the process for challenging the health‑care‑provider certification provided by an employee.
Additional information concerning these issues, as well as other questions concerning the FMLA, may be answered in Department of Labor publications or by your attorney.
The FMLA has always taken a broad view as to the term “parent” for purposes of FMLA eligibility. Recently, however, the Department of Labor defined “parent” as anyone who intends to assume the role of parent to that child by providing day-to-day care or financial support. No biological, adoptive, or formal legal relationship is necessary. For example, an employee might be entitled to time off when an unmarried partner’s child is born, even though the employee is not the child’s biological parent, doesn’t intend to adopt the child, and is not married to the child’s parent. Because the law in this regard is constantly changing, you should contact your attorney for current interpretations.
Until the enactment of the FMLA, employers in Illinois had broad discretion to define their medical leave of absence policies. Those employers not covered by the FMLA still have that discretion.
In addition to the FMLA, employers of 15 or more employees should be aware of the Pregnancy Discrimination Act (PDA), part of Title VII of the Civil Rights Act of 1964. The PDA amended Title VII to provide that discrimination on the basis of pregnancy, childbirth, or related medical conditions is a form of prohibited sex discrimination. Female employees who are pregnant must therefore be allowed to take leaves of absence for pregnancy that are commensurate with leaves available to other employees for other medical conditions. In essence, employers cannot treat pregnancy leave less favorably than they treat other types of disability leave. Similarly, employers are not required to provide greater leave to pregnant employees than they do for other, non-pregnant employees. Employers should also be cautious in adopting leave policies to avoid drawing a discrimination charge on the theory that such a policy has an adverse impact on one group of employees based on gender. Notably, leaves offered for bonding with a new-born child should be the same for men and women. While additional leave may be warranted for recovery from child birth, policies should be carefully drafted to reflect this nuance. Also, employers must consider restrictions under the Illinois Human Rights Act (IHRA). Specifically, the IHRA creates accommodation and reinstatement obligations related to pregnancy that employers must consider.
Employers of 15 or more employees also should be aware of the potential application of the ADA in cases involving medical leaves of absence. In Illinois, the Illinois Human Rights Act provides similar protections to individuals employed by a company with fifteen or more employees. Under both statutes, an employee who takes a medical leave, including a leave protected by the FMLA, might be considered a qualified individual with a disability upon his or her return to work. Such an employee would be entitled to a reasonable accommodation of his or her disability if the employee could perform essential job functions with such an accommodation. Employers therefore should be careful not to terminate an employee who desires to return to work but whose leave period has expired without first determining whether the employee is protected by the ADA or similar provisions of the IHRA. In making these determinations employers should be cognizant of the fact that part-time employment, or additional unpaid leave, may, under certain circumstances, and for certain time periods, be considered a reasonable accommodation. Non-FMLA leave and ADA accommodation request forms follow the sample policy.
Employers are not obligated by either federal or state law to provide personal leaves of absence to their employees, except to the extent required by the Family and Medical Leave Act (FMLA), if applicable, or as a reasonable accommodation under the ADA (or the equivalent provisions of the Illinois Human Rights Act). If an employer chooses to voluntarily provide such leave, its policy should state whether the employee will be entitled to pay during this period and the conditions for taking such leave. Additionally, the employer should draft the policy carefully so as to avoid any apparent promise of reinstatement upon completion of an employee’s personal leave. The EEOC has indicated that policies indicating that an employee will be terminated after a specified period has passed (such as six months) are considered suspect and may violate the ADA’s requirement to engage in an interactive process and consider the specific facts of each situation.
The Illinois Child Bereavement Leave Act establishes an unpaid bereavement leave benefit following the death of a child. The Act applies to employers with 50 or more employees and provides eligible employees with a maximum unpaid leave benefit of 10 working days following the death of a child. Employees may be entitled to up to six weeks of bereavement time in the event of the death of more than one child during a 12-month period. The time may be used to attend the funeral, or alternative to a funeral, make arrangements necessitated by the death, or to grieve the death of the child. The leave must be completed within 60 days after the date the employee receives notice of the death of the child. Employers are entitled to 48 hours of notice before the leave, unless it is not practicable. Employers may require documentation to verify the necessity of the leave. To be eligible, an employee must have worked at least 1,250 hours during the preceding 12-month period.
There is no other obligation under federal or state law to provide bereavement leave to employees, even without pay. However, employers should be aware, from the standpoint of recruiting the most highly qualified employees, that this is a benefit commonly offered by employers. A bereavement leave policy should specify eligibility requirements and conditions for such leave, including the relationship of the deceased to the employee. Some employers also require proof of the death or the relationship to the employee to prevent abuse of the benefit. An employer may want to consider adding “step” or other non-traditional relationships to its bereavement policy.
The Victims' Economic Security and Safety Act (VESSA) allows employees who are victims of domestic or sexual violence or who have family or household members who are victims of such violence to take up to 12 weeks of unpaid leave per any 12-month period to seek medical help, legal assistance, counseling, safety planning, and other assistance. The Act also prohibits employers from discriminating against employees who are victims of domestic or sexual violence or who have family or household members who are victims of domestic or sexual violence.
VESSA was recently amended to extend its protections to victims of gender violence. As such, employers much provide up to 12 weeks of job-protected leave per year to victims of domestic, sexual or gender violence, or whose family members are victims.
Authorized reasons for leave include:
Employers are required to keep all information received in connection with a VESSA request strictly confidential.
The sample policy contains a provision for partial wage payments to employees on a short‑term military leave of absence. Although such payments are not mandated by law (except as discussed below), federal law creates certain job protections for employees who take temporary leaves of absence for active or reserve military duty. Furthermore, under state law, certain employers may be required to grant an employee leave if the employee’s spouse or child is called, or has received notice of an impending call, to military service.
The most far‑reaching of these laws, the Uniformed Services Employment and Re-employment Rights Act (USERRA), prohibits employers from terminating any employee – unless the employee is employed for a brief, non‑recurrent period and has no reasonable expectation that employment will continue – who indefinitely takes a leave of absence of up to five years (or more in limited circumstances) for active or reserve military service.
Upon return from military leave, an employee is entitled to reinstatement in a position that the employee would have obtained if he or she had been continuously employed or, in some circumstances, in a position of like seniority, status, and pay. If unqualified for such a position, the employee must be reinstated to the position he or she held when the military leave began, or, in some circumstances, to an alternative position of like seniority, status, and pay for which the employee is qualified. Reinstated employees also are entitled to full seniority benefits.
In addition, if an employee is absent for more than 180 days for military duty, the employee may not be discharged for one year subsequent to the employee’s return except for just cause. If the military leave is more than 30 but less than 181 days, then the employee may not be discharged without just cause for a period of six months after reinstatement. Under very limited circumstances in which the employer can show that reinstatement would be impossible or unreasonable, or in which reinstatement would pose an undue hardship on the employer, the employer may be able to avoid the legal requirement to reinstate an employee upon return from military leave.
Employees who desire reinstatement under USERRA must apply for reinstatement within a limited period following termination of their military service. If the military leave is 30 days or less, the employee generally must report for reinstatement on the first regularly scheduled working day following his or her completion of the service. If the period of service is between 31 and 180 days, then the individual must apply for reinstatement within 14 days of completion of service. If the length of service is 181 days or more, then the employee has up to 90 days to apply for reinstatement under USERRA.
Finally, employees taking military leave under the USERRA may use any accrued vacation, annual, or similar leave in lieu of unpaid leave. Employees taking military leave also are entitled to elect to continue health care coverage, to the extent such coverage is otherwise provided, for a period of up to 31 days. After 31 days, coverage must be offered to the employee – at a cost to the employee of not more than 102 percent of actual premium costs – for a period of up to 18 months.
Pursuant to the Family Military Leave Act, certain employers are required to give employees time off if their spouse or child is called, or will be called, into active military service. The employee must first exhaust all accrued vacation leave, personal leave, compensatory leave, and any other leave granted by the employer, except sick leave and disability leave.
The employer is not required to pay the employee during their leave of absence; however, the employer may choose to do so. If the employer decides to incorporate a policy of paid family military leave, the employer should make all employees aware of this policy and apply it consistently.
The amount of time that employers are required to allow varies according to the company’s size:
Employees are required to consult with employers to schedule leave in a manner that does not unduly disrupt the employer’s business operations. Additionally, if the employee is requesting more than five consecutive days of leave, the employee must give at least 14 days notice of the intended date upon which the family military leave will commence. The employee only needs to give reasonable notice to the employer if he or she intends to take less than five consecutive days of leave.
The U.S. Department of Labor provides forms for employers to use for requests for leave under the Family and Medical Leave Act (FMLA).
Employers are advised to:
When using these forms, employers should also include the following direction to its employees and employees’ healthcare providers in accordance with the Genetic Information Nondiscrimination Act (GINA):
“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”
The forms are:
Generally, neither federal nor state law requires employers to pay hourly, or non-exempt employees for jury duty, however, salaried employees who are exempt from the requirements of the Fair Labor Standards Act must be paid their regular salary for any week in which they perform any work for their employer. Consequently, unless an exempt salaried employee’s jury duty was for a full work week, during which the employee performed no work for the employer, regular salary payments must be made to the employee. Employers should note that both federal law and Illinois law prohibit employers from taking any adverse action, including discipline or discharge, against an employee who is absent from work because of jury service. As a measure of goodwill towards employees, however, many employers elect to supplement jury duty pay so that employees continue to receive their regular compensation during this time. As in the sample policy, any requirements for receiving jury duty pay from the employer should be outlined in the policy. An employer cannot require or request that an employee use annual, vacation, personal, or sick leave for time spent on jury duty.
Under Illinois law, employers are required to allow employees two hours of paid leave to vote on an election day. There are a few exceptions to this rule. In order to qualify for voting leave, the employee must ask the employer for such leave of absence the day before the election. Also, the employer does not have to grant an employee voting leave if the employee's normal working hours begin more than two hours after the polls open or end more than two hours before the polls close.
If an employee otherwise qualifies for leave of absence to vote, the employer may choose the hours that the employee can take the voting leave.
Severe weather can pose serious challenges for employees on their commutes to and from work. To minimize confusion when the weather is a concern, some employers address severe weather conditions in their employee handbook. When drafting a severe weather policy, consider the following:
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