Executive Summary: On April 30, 2024, the Illinois Department of Labor (“IDOL”) finalized its Rules for the Paid Leave for All Workers Act (“PLAW Act” or “the Act”). In November, the IDOL proposed Rules for the law that we outlined in our previous “Learn your Rules” article. Since the Rules were originally proposed in November 2023, the IDOL has made some changes, and these changes have laid the foundation for how to adhere to PLAWA. This article is intended to cover the changes from what was originally proposed. For details of the remainder of the Rules, please refer to our prior article.
Notice Requirements and Reason for Leave – Don’t Ask, and Employees Don’t Have to Tell!
We will begin with what was unfortunately not fixed by the final Rules. The single biggest flaw and potential area of danger for employers that remains under the PLAW Act, which was not addressed in any useful manner by the Rules, relates to notice requirements. Act provides that employers may require up to 7 days’ notice of the need for leave if the need was foreseeable (which in and of itself, in many industries, is already not enough notice to be useful to employers). If the need for the leave is unforeseeable, then an employee need only provide as much notice as is practicable, which can mean no notice at all. The Act, however, also prohibits employers from asking employees for the reason they are taking the leave or for any documentation supporting the need. This means that employers will never be able to ask meaningful questions to assess whether leave taken at the last minute was foreseeable.
Aside from matters like inconvenience, staffing issues, and safety considerations caused by last-minute absences, this flaw can easily lead to abuse by employees, particularly those with the propensity to skirt an employer’s time and attendance policies. For instance, if an employee is chronically late, all he has to do is call in and say that he is using his available PLAW leave to cover the tardiness, and there is (mostly) nothing the employer can do to challenge the use. (See below, however, for the possible exception to deny for “operational needs.”) Indeed, an employee could also have requested a particular day off (such as the day after the Super Bowl or a holiday) weeks or even months in advance but have been denied because too many others already asked, and then take the day off anyway and call it PLAW leave. Because employers are prohibited from asking for the reason for the leave, they will have their hands tied when trying to enforce their attendance and tardiness policies. Employers must also be careful to avoid claims of retaliation for using the PLAW leave.
Unfortunately, the new Rules did nothing at all to account for this shortcoming in the law, to the significant detriment of employers. The only rule modification made was a still vague definition of a “foreseeable” need, defined as reasonably able to be known or anticipated (and predictably, “unforeseeable” is defined as “not reasonably able to be known or anticipated.”) Given the inability of an employer to ask employees questions to ascertain the foreseeability, however, one has to wonder why the IDOL even provided these definitions at all. Still, employers should be sure to document each time an employee asks for but is denied a leave in advance, and also document last-minute call-offs. An interesting side note is the fact that the various examples the IDOL provides throughout the rules are specific to different scenarios, which presumes that the employer and employee have had some sort of dialogue as to why there is a particular need for leave.
Denying Leaves Due to Operational Needs
One significant change in the Rules, beneficial to employers, was the removal from the proposed rules of the very narrow and stringent definition of “operational needs” that could be used to deny PLAW leave requests. The original draft Rules would effectively have only allowed denials in life and death type of industries, where people’s health or lives were at stake (such as perhaps first responders or health care providers). The final Rules provide a more reasonable definition of “operational needs” and would allow denial if: 1) the policy for considering requests under the Act, including any basis for denial, is disclosed to the employee in writing; 2) the policy establishes certain limited circumstances in which paid leave can be denied in order to meet the employer’s operational needs; and 3) the policy is consistently applied and does not, in effect, deny employees adequate opportunity to use the leave over the 12-month period.
While the IDOL did not offer examples, some examples could include industries where a certain number of employees are needed to operate a particular machine or a safety person is needed to be standing by at all times, and a last-minute call-off would not allow the machine to be run that day. Another example could be if a business was obligated (either by law or general safety standards) to have a certain amount of staff working in order to be open (i.e. a daycare or a gas station) and granting a PLAW leave request would either cause a violation of the law or require the business to close that day or operate in potentially unsafe conditions. Or perhaps it could apply to a restaurant whose head chef is off and the sous chef who is supposed to be covering decides to call off, which would cause the restaurant to have to close for the day.
Therefore, a best practice for any employer who wishes to be able to deny a request for leave would be to have a clear written policy for employees that spells out in as much detail and with as many examples as the employer can fathom the circumstances under which it may deny the leave.
Preexisting Policies (For Employers with Preexisting Policies before January 1, 2024)
Another significant change to the originally proposed Rules is that the IDOL defined what a “qualifying pre-existing paid leave policy” means. This new definition allows policies that existed prior to January 1, 2024 that provide the minimum amount of leave required (40 hours) to remain in effect as long as the employee has the discretion to take the leave for any reason. The advantage in permitting some employers to possibly keep their existing policies intact is that they could continue to use provisions that would not be allowed if drafting a new policy, such as relating to the amount of notice to be given, the minimum increments for use, and being required to give a reason for the absence.
In the new Rules, the IDOL has clarified through its examples that preexisting policies that provide the minimally required hours that can be used for any reason do not have to be modified, even if they contain prohibited practices such as relating to advance notice and manager approval.
Another question raised from the original proposed Rules was whether a preexisting policy that provided the minimal amount of time to full-time but not part-time employees could simply be modified to allow the minimum leave for part-timers without being considered to be a policy change that would require the entire policy to be brought fully into compliance with the PLAW Act. An example provided in the new Rules provides that simply adding part-time employees into a preexisting policy, in compliance with the Act, would not require modification of the remainder of the policy.
As noted, however, the changes in this section only help those employers who had policies in existence prior to January 1, 2024 that provided at least 40 hours of paid leave per year to employees that could be used for any reason.
Payout Instead of Carryover
The original Rules called for either frontloading or carryover of unused hours from one year to the next. The new Rules also allow employers and employees to mutually agree to pay out unused accrued PLAW leave rather than carrying over to the next year.
Minimum Increments – Not Consecutive?
Although not specifically spelled out in the Rules, under General Provisions, one example suggests that the minimum increment of 2 hours of use does not necessarily have to be consecutive hours in the day and can instead be split up. The specific example is if an employee’s before and after school care is cancelled, the employee needs to be allowed to arrive one hour late and leave one hour early, for a total of the two-hour minimum increment. As explained above, such a provision may lead to abuse by employees with a propensity for tardiness (or for leaving early). It is unclear whether an employer must allow this.
Requirements for Municipalities
The Rules confirm that employers in municipalities or counties that require any form of paid leave (even if not minimally compliant with the Act) are not covered by the Act and instead are covered by the requirements of their home municipalities/counties. Since the passage of the PLAW Act, some municipalities/counties have opted out of the Act by enacting their own paid leave ordinances. The Rules clarify that if the municipality/county does not require any paid leave at all, employers must comply with the Act. Further, employers with locations in counties or municipalities that have not opted out must still provide those employees with PLAW leave.