And the 2017 Paid Sick Leave Patchwork Award for its contribution to the vast and complex patchwork of paid sick leave laws goes to (drumroll please) Cook County, Illinois. There was not a close second.
Before the County enacted its Earned Sick Leave Ordinance in October 2016, the State’s attorney cautioned that the County did not have the authority to enact it. The County Commissioners were undeterred.
The Illinois Constitution gives home rule municipalities the right to not comply with a County ordinance if the municipality has a conflicting ordinance. Thus far, by my count, 110 municipalities—about 80% of those in the County–have enacted an ordinance whose sole purpose is to conflict with the Cook County Ordinance, essentially negating or opting out of that Ordinance. These opt-outs include many non-home rule municipalities.
You need not look too far into your crystal ball to see the litigation likely to result. When the County seeks to enforce its Ordinance against an employer in a non-home rule municipality that has opted out and claims that the municipality did not have the authority to opt out, the employer will say “well, YOU had no authority to pass the ESL in the first place.”
But there is more. As a result of the opt outs, a mobile employee who travels throughout the County, such as a delivery driver or cable television tech will, during any given day, travel through municipalities where the employee accrues paid sick leave and others when the employee is not accruing such leave. Accurately tracking the time when such an employee is and is not accruing paid time during a day will be near impossible.
But that is not all. The carry-over provision is the most complicated I have ever seen in any paid sick leave law nationwide. The amount of unused hours that can be carried over differs depending on whether the employer is an “FMLA-Eligible Covered Employer” or not. A non-FMLA-Eligible employee can carryover up to half of the unused hours, to a maximum of 20 hours. An FMLA-Eligible employee can carry over up to 40 hours in addition to that twenty. The 20 hours are “Ordinance-Restricted Earned Sick Leave” and can only be used for reasons set out in the Ordinance. The other 40 hours are “FMLA-Restricted Earned Sick Leave” and can be used for FMLA purposes only. The confusion this will cause will be limitless.
A PSL-hat tip to Cook County!