HB3898 102ND GENERAL ASSEMBLY

LRB102 10889 JLS 16219 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3898

Introduced 2/22/2021, by Rep. Jehan Gordon-Booth

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.935 new

Creates the Healthy Workplace Act and amends the State Finance Act. Requires employers to provide specified paid sick days to employees. Sets forth the purposes for and manner in which the sick days may be used. Contains provisions regarding employer responsibilities, unlawful employer practices, and other matters. Provides that an employee who works in the State who is absent from work for specified reasons is entitled to earn and use a minimum of 40 hours of paid sick time during a 12-month period or a pro rata number of hours of paid sick time under the provisions of the Act. Provides that it is unlawful for an employer to interfere with, restrain, deny, change work days or hours scheduled to avoid paying sick time, or discipline an employee for the exercise of, or the attempt to exercise, any right provided under or in connection with the Act, including considering the use of paid sick time as a negative factor in an employment action that involves hiring, terminating, evaluating, promoting, disciplining, or counting the paid sick time under a no-fault attendance policy. Provides that any employer that the Department of Labor or a court finds by a preponderance of the evidence to have knowingly, repeatedly, or with reckless disregard violated any provision of the Act or any rule adopted under the Act is subject to a civil money penalty to be paid to the employee not to exceed $2,500 for each separate offense. Provides that the Department of Labor shall administer the Act. Authorizes individuals to file civil actions with respect to violations. Creates the Healthy Workplace Fund as a special fund in the State treasury. Effective July 1, 2021.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Healthy Workplace Act.

Section 5. Findings and purpose.

(a) The General Assembly finds:

(1) Nearly every worker in the State is likely to need time off to attend to his or her own illness or that of a family member. More than 30% of all private sector workers in Illinois (almost 2,000,000 people) have no right to a paid sick day. Over three-fourths of the lowest-wage workers do not receive paid sick time and cannot forfeit a day's work, so they often come into work sick.

(2) Preventive and routine medical care helps avoid illness and injury by detecting illnesses early on and shortening the duration of illnesses. Providing employees with time off to attend to their own health care needs ensures that they will be healthier and more efficient employees. It will also reduce the spread of disease within workplaces and to the public, such as customers, when employees go to work sick, a practice known as "presenteeism". Routine medical care results in savings by detecting and treating illness and injury early and decreasing the need for emergency care. These savings benefit public and private payers of health insurance.

(3) When the school of a worker's child is closed because of extreme weather, it is often at the last minute and workers cannot find someone to babysit, so they are forced to stay at home to take care of their children.

(4) Nearly one-quarter of American women report domestic violence and nearly one in 5 women report experiencing rape at some time during their lives. Many workers, men and women, need time off to care for their health after these incidents or to take legal action. Without paid time off, victims are in danger of losing their jobs.

(5) Employed individuals who have court appointments, sentencing hearings, probation, conditional discharge, parole, or mandatory supervised release requirements, or are visiting a family member in jail or prison need paid time off work so that their families do not fall further into economic jeopardy and so that they are not further penalized, as these court-related events are frequently scheduled during work hours.

(6) Employers that provide paid sick time see better productivity, reduced flu contagion, and lower turnover, which saves them the costs of replacing and training workers.

(b) This Act is enacted to establish the Healthy Workplace Act to provide at least a minimum time-off standard of paid sick time for all workers.

Section 10. Definitions. As used in this Act:

"Child" means a son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, a child of a person standing in loco parentis, or any other individual whose close association with the employee is the equivalent of a child.

"Construction industry" means any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, wrecking, painting, decorating, demolishing, or adding to or subtracting from any building, structure, highway, roadway, street, bridge, alley, sewer, ditch, sewage disposal plant, waterworks, parking facility, railroad, excavation or other structure, project, development, real property, or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to or fabrication into, any structure, project, development, real property, or improvement herein described of any material or article of merchandise.

"Construction industry" also includes moving construction related materials on the job site or to or from the job site, snow plowing, snow removal, and refuse collection.

"Department" means the Illinois Department of Labor.

"Employ" means to suffer or permit to work.

"Employee" means any person who performs services for an employer for wage, remuneration, or other compensation. This includes persons working any number of hours, including a full-time or part-time status.

"Employee" does not include any person who the employer establishes:

(A) has been and will continue to be free from control and direction over the performance of their work, both under a contract of service and in fact;

(B) is engaged in an independently established trade, occupation, profession or business; or

(C) is deemed a legitimate sole proprietor or partnership.

A sole proprietor or partnership shall be deemed to be legitimate if the employer establishes that:

(1) the sole proprietor or partnership is performing the service free from the direction or control over the means and manner of providing the service, subject only to the right of the employer for whom the service is provided to specify the desired result;

(2) the sole proprietor or partnership is not subject to cancellation or destruction upon severance of the relationship with the employer;

(3) the sole proprietor or partnership has a substantial investment of capital in the sole proprietorship or partnership beyond the ordinary tools and equipment and a personal vehicle;

(4) the sole proprietor or partnership owns the capital goods and gains the profits and bears the losses of the sole proprietorship or partnership;

(5) the sole proprietor or partnership makes its services available to the general public on a continuing basis;

(6) the sole proprietor or partnership includes services rendered on a Federal Income Tax Schedule as an independent business or profession;

(7) the sole proprietor or partnership performs services for the contractor under the sole proprietor's or partnership's name;

(8) when the services being provided require a license or permit, the sole proprietor or partnership obtains and pays for the license or permit in the sole proprietorship's or partnership's name;

(9) the sole proprietor or partnership furnishes the tools and equipment necessary to provide the service;

(10) if necessary, the sole proprietor or partnership hires its own employees without approval of the employer, pays the employees without reimbursement from the employer and reports the employees' income to the Internal Revenue Service;

(11) the employer does not represent the sole proprietorship or partnership as an employee of the employer to the public; and

(12) the sole proprietor or partnership has the right to perform similar services for others on whatever basis and whenever it chooses.

Nothing in this Act shall hinder or prohibit the ability of any employee, including those as defined in the federal Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.) from taking uncompensated time off due to any reason for leave allowable for paid sick time under Section 15 of this Act.

"Employer" means any individual; person; partnership; association; corporation; limited liability company; business trust; employment or labor placement agency or business where wages are made directly or indirectly by the agency or business for work undertaken by the employee under hire to a third party pursuant to a contact between the agency or business with the third party; the State of Illinois and local governments; or any political subdivision of the State or local government, or State or local government agency; for which one or more persons is gainfully employed, express or implied, whether lawfully or unlawfully employed, who employs a worker or who employs a worker not excluded as an employee pursuant to the definition of "employee" or, notwithstanding any other law, who is the employer or joint employer for collective bargaining purposes of a bargaining unit of employees. "Employer" does not include school districts organized under the School Code, park districts organized under the Park District Code, or any City of Chicago Sister Agency under the Chicago Minimum Wage and Paid Sick Leave Ordinance as of the effective date of this Act.

"Family member" means a child, spouse, parent, child or parent of an employee's spouse, sibling, grandparent, grandchild, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

"Health care provider" means a person:

(1) who is:

(A) licensed to practice medicine in all of its branches in Illinois and possesses the degree of doctor of medicine;

(B) licensed to practice medicine in all of its branches in Illinois and possesses the degree of doctor of osteopathy or osteopathic medicine;

(C) licensed to practice medicine in all of its branches or as an osteopathic physician in another state or jurisdiction;

(D) a chiropractic physician licensed under the Medical Practice Act of 1987; or

(E) any other person determined by final rule as of the date this Act becomes law under the Family and Medical Leave Act of 1993; and

(2) who is not employed by an employer to whom the provider issues certifications under this Act.

"Paid sick time" means a portion of or an entire scheduled or regular workday when an employee is unable to report to work because of a reason described in subsection (b) of Section 15.

"Parent" means a biological, adoptive, or foster parent, a stepparent, a parent of a legal ward, a person who stands in loco parentis to an employee or an employee's spouse, or any other individual whose close association with the employee is the equivalent of a parent.

"Spouse" means a party to a marriage or a party to a civil union as defined by law.

"Victim services organization" means a nonprofit, nongovernmental organization that provides assistance to victims of domestic or sexual violence, including rape crisis centers, organizations carrying out a domestic violence program, organizations operating a shelter or providing counseling services, and a legal services organization or other organization providing assistance through the legal process.

Section 15. Provision of paid sick time.

(a) An employee who works in Illinois who is absent from work for a reason set forth in subsection (b) is entitled to earn and use a minimum of 40 hours of paid sick time during a 12-month period or a pro rata number of hours of paid sick time under the provisions of subsection (c). The 12-month period for an employee shall be calculated annually from the date of hire or the effective date of this Act, whichever is later.

(b) Paid sick time shall be provided to an employee by an employer to:

(1) care for the employee's own physical or mental illness, injury, or health condition, or seek medical diagnosis or care, or attend a medical appointment, provided the employee is not an employee as defined in the federal Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.);

(2) care for the employee's family member who is suffering from a physical or mental illness, injury, or health condition, or seek medical diagnosis or care, or attend a medical appointment;

(3) 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 or to not go in to work because of the closure of the employee's place of business by order of a public official due to a public health emergency;

(4) be absent from work because the employee or the employee's family member is the victim of:

(A) domestic violence as defined in Section 103(3) of the Illinois Domestic Violence Act of 1986; or

(B) sexual violence, which means:

(i) any conduct proscribed by Article 11 of the Criminal Code of 2012 except Sections 11-35 and 11-45;

(ii) Sections 12-7.3, 12-7.4, and 12-7.5 of the Criminal Code of 2012, or

(iii) a similar provision of the Criminal Code of 1961;

(5) be absent from work to visit the employee's family member who is in jail or prison, for the employee to attend his or her own or his or her family member's appointment regarding court sentencing, probation, conditional discharge, parole, or mandatory supervised release requirements, or any other civil or criminal court hearing or trial; or

(6) care for the employee's own illness or the employee's family member who is suffering from an illness, injury, or health condition, or seek medical diagnosis or care, or attend a medical appointment arising out of exposure to COVID-19.

(c) Paid sick time shall accrue at the rate of one hour of paid sick time for every 40 hours worked up to a minimum of 40 hours of paid sick time unless the employer selects a higher limit. Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (29 U.S.C. 213(a)(1)) shall be deemed to work 40 hours in each work week for purposes of paid sick time accrual unless their normal work week is less than 40 hours, in which case paid sick time accrues based on that normal work week. Employees shall determine how much paid sick time they need to use, provided that employers may set a reasonable minimum increment for the use of paid sick time not to exceed 4 hours per day.

(d) Employees shall be paid their regular rate of pay for paid sick time. However, employees engaged in an occupation in which gratuities or commissions have customarily and usually constituted and have been recognized as part of the remuneration for hire purposes shall be paid by their employer at least the full minimum wage in the jurisdiction in which they are employed when paid sick time is taken. Paid sick time under this Act shall not be charged or otherwise credited to employee vacation accounts.

(e) Paid sick time shall begin to accrue at the commencement of employment or on the effective date of this Act, whichever is later. Employees shall be entitled to begin using paid sick time 180 days following commencement of their employment or 180 days following the effective date of this Act, whichever is later. Nothing in this Section shall be construed to discourage or prohibit an employer from allowing the use of paid sick time at an earlier date than this Section requires. Nothing in this Act shall be construed to discourage employers from adopting or retaining paid sick time policies more generous than policies that comply with the requirements of this Act.

(f) An employer may require certification of the qualifying illness, injury, or health condition, or for time used pursuant to item (1) or (2) of subsection (b), when paid sick time used covers more than 3 consecutive workdays. Any reasonable documentation signed by a health care provider of the employee's choice involved in following or treating the illness, injury, or health condition, and indicating the need for the amount of sick time taken, shall be deemed acceptable certification. Nothing in this Act shall be construed to require an employee to provide as certification any information from a health care provider that would be a disclosure in violation of Section 1177 of the Social Security Act or the regulations promulgated pursuant to the federal Health Insurance Portability and Accountability Act of 1996. If an employer possesses health information or any information related to domestic or sexual violence about an employee or employee's family member, the information shall be treated as confidential and not disclosed except with the permission of the affected employee. For paid sick time used pursuant to item (4) of subsection (b), any one of the following is acceptable documentation, and only one of the following shall be required: a police report, court document, any reasonable documentation signed by a health care provider, or signed statement from an attorney, a member of the clergy, a victim services organization or advocate, or the employee. It is up to the employee to determine which documentation to submit. If a document has been submitted, the employer shall not request or require any other document if the reason for the sick time is related to the same incident of violence or the same perpetrator of the violence. The employer shall not delay the commencement of leave taken for purposes of subsection (b) nor delay pay for this period on the basis that the employer has not yet received the certification.

(g) Paid sick time shall be provided upon the oral request of an employee. If the necessity for paid sick time under this Act is foreseeable, the employee shall provide the employer with not less than 7 days' notice before the date the leave is to begin. If the necessity for leave is not foreseeable, the employee shall provide such notice as soon as is practical after the employee is aware of the necessity of the leave. An employer may not require, as a condition of providing paid sick time under this Act, that the employee search for or find a replacement worker to cover the hours during which the employee is on paid sick time leave.

(h) Paid sick time shall carry over annually to the extent not used by the employee, provided that nothing in this Act shall be construed to require an employer to allow use of more than 40 hours of paid sick time for an employee unless the employer agrees to do so.

(i) It is unlawful for an employer to interfere with, restrain, deny, change work days or hours scheduled to avoid paying sick time, or discipline an employee for the exercise of, or the attempt to exercise, any right provided under or in connection with this Act, including considering the use of paid sick time as a negative factor in an employment action that involves hiring, terminating, evaluating, promoting, disciplining, or counting the paid sick time under a no-fault attendance policy.

(j) During any period an employee takes leave under this Act, the employer shall maintain coverage for the employee and any family member under any group health plan for the duration of such leave at least the level and conditions of coverage as would have been provided if the employee had not taken the leave.

(k) Nothing in this Section shall be construed as requiring financial or other payment to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for accrued paid sick time that has not been used.

(l) Nothing in this Section shall be construed to prohibit an employer from taking disciplinary action, up to and including termination, against an employee who uses paid sick time provided pursuant to this Act for purposes other than those described in this Section.

(m) If an employee is transferred to a separate division, entity, or location, but remains employed by the same employer, the employee is entitled to all paid sick time accrued at the prior division, entity, or location and is entitled to use all paid sick time as provided in this Section. If there is a separation from employment and the employee is rehired within 12 months of separation by the same employer, previously accrued paid sick time that had not been used shall be reinstated. The employee shall be entitled to use accrued paid sick time at the commencement of employment following a separation from employment of 12 months or less.

(n) Nothing in this Section shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the applicable minimum standards of the provisions of this Act. Nothing in this Section shall be deemed to affect the validity or change the terms of bona fide collective bargaining agreements in force on the effective date of this Act. After the effective date of this Act, requirements of this Section may be waived in a bona fide collective bargaining agreement, but only if the waiver is set forth explicitly in such agreement in clear and unambiguous terms. In no event shall this Section apply to any employee working in the construction industry who is covered by a bona fide collective bargaining agreement.

Section 20. Related employer responsibilities.

(a) An employer subject to any provision of this Act shall make and preserve records documenting hours worked by employees and the amount of paid sick time taken by employees for a period of not less than 3 years and shall allow the Department access to such records, with appropriate notice and a mutually agreeable time, to monitor compliance with the requirements of this Section. In addition, the records shall be preserved for the duration of any claim pending pursuant to Section 35 of this Act.

(b) An agreement by employees to waive their rights under this Act, except as allowed under subsection (n) of Section 15, is void as against public policy.

(c) Employers who have a paid time off policy that complies with the requirements of this Act are not required to modify the policy if such policy offers an employee the option, at the employee's discretion, to take paid sick time that is at least equivalent to the paid sick time described in this Act.

(d) An employer shall post and keep posted in a conspicuous place on the premises of the employer where notices to employees are customarily posted, and include in an employee manual or policy if the employer has one, a notice, to be prepared by the Department, summarizing the requirements of this Act and information pertaining to the filing of a charge. If an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer is responsible for providing the notice in a language in which the employees are literate. An employer who willfully violates the notice and posting requirements of this Section shall be subject to a civil penalty to be paid to the employee in an amount not to exceed $100 for each separate offense.

Section 25. Unlawful employer practices. It is unlawful for any employer to retaliate or otherwise take any adverse action against an employee because the employee (1) exercises rights or attempts to exercise rights under this Act, (2) opposes practices which such employee believes to be in violation of this Act, or (3) supports the exercise of rights of another under this Act. Such unlawful employer practices include, but are not limited to, any reference to the employee's or any of the employee's family members' citizenship or immigration status, or any threat to contact or actual contact with any local, State, or federal government entities regarding the employee's or any of the employee's family members' citizenship or immigration status, or sexual harassment. Exercising rights under this Act includes filing an action or instituting or causing to be instituted any proceeding under or related to this Act; providing or agreeing to provide any information in connection with any inquiry or proceeding relating to any right provided under this Act; or testifying to or agreeing to testify in any inquiry or proceeding relating to any right provided under this Act.

Section 30. Department responsibilities.

(a) The Department shall administer and enforce this Act and adopt rules under the Illinois Administrative Procedure Act for the purpose of this Act. The Department shall have the powers and the parties shall have the rights provided in the Illinois Administrative Procedure Act for contested cases. The Department shall have the power to conduct investigations in connection with the administration and enforcement of this Act, including the power to conduct depositions and discovery and to issue subpoenas. If the Department finds cause to believe that this Act has been violated, the Department shall notify the parties in writing and the matter shall be referred to an Administrative Law Judge to schedule a formal hearing in accordance with hearing procedures established by rule. Administrative decisions shall be reviewed under the Administrative Review Law.

(b) The Department is authorized to impose civil penalties prescribed in Section 35 in administrative proceedings that comply with the Illinois Administrative Procedure Act and to supervise the payment of the unpaid wages and damages owing to the employee or employees under this Act. The Department may bring any legal action necessary to recover the amount of unpaid wages, damages, and penalties, and the employer shall be required to pay the costs. Any sums recovered by the Department on behalf of an employee under this Act shall be paid to the employee or employees affected. However, 20% of any penalty collected from the employer for a violation of this Act shall be deposited into the Healthy Workplace Fund, a special fund created in the State treasury that is dedicated to enforcing this Act.

(c) The Attorney General may bring an action to enforce the collection of any civil penalty imposed under this Act.

Section 35. Enforcement.

(a) An employee who believes his or her rights under this Act or any rule adopted under this Act have been violated may, within 3 years after the date of the last event constituting the alleged violation for which the action is brought, file a complaint with the Department or file a civil action.

(b) Any employer that violates this Act is liable in a claim filed with the Department or in a civil action in circuit court to any affected individuals for actual and compensatory damages, with interest at the prevailing rate, punitive damages, and such equitable relief as may be appropriate, in addition to reasonable attorney's fees, reasonable expert witness fees, and other costs of the action to be paid by the defendant. A civil action may be brought without first filing a complaint with the Department. Administrative decisions are reviewable under the Administrative Review Law.

(c) Any employer that the Department or a court finds by a preponderance of the evidence to have knowingly, repeatedly, or with reckless disregard violated any provision of this Act or any rule adopted under this Act is subject to a civil money penalty to be paid to the employee not to exceed $2,500 for each separate offense.

Section 90. The State Finance Act is amended by adding Section 5.935 as follows:

(30 ILCS 105/5.935 new)

Sec. 5.935. The Healthy Workplace Fund.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect July 1, 2021.