Illinois General Assembly - Full Text of HB3898
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Full Text of HB3898  102nd General Assembly




State of Illinois
2021 and 2022


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


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.

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HB3898LRB102 10889 JLS 16219 b

1    AN ACT concerning employment.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Healthy Workplace Act.
6    Section 5. Findings and purpose.
7    (a) The General Assembly finds:
8        (1) Nearly every worker in the State is likely to need
9    time off to attend to his or her own illness or that of a
10    family member. More than 30% of all private sector workers
11    in Illinois (almost 2,000,000 people) have no right to a
12    paid sick day. Over three-fourths of the lowest-wage
13    workers do not receive paid sick time and cannot forfeit a
14    day's work, so they often come into work sick.
15        (2) Preventive and routine medical care helps avoid
16    illness and injury by detecting illnesses early on and
17    shortening the duration of illnesses. Providing employees
18    with time off to attend to their own health care needs
19    ensures that they will be healthier and more efficient
20    employees. It will also reduce the spread of disease
21    within workplaces and to the public, such as customers,
22    when employees go to work sick, a practice known as
23    "presenteeism". Routine medical care results in savings by



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1    detecting and treating illness and injury early and
2    decreasing the need for emergency care. These savings
3    benefit public and private payers of health insurance.
4        (3) When the school of a worker's child is closed
5    because of extreme weather, it is often at the last minute
6    and workers cannot find someone to babysit, so they are
7    forced to stay at home to take care of their children.
8        (4) Nearly one-quarter of American women report
9    domestic violence and nearly one in 5 women report
10    experiencing rape at some time during their lives. Many
11    workers, men and women, need time off to care for their
12    health after these incidents or to take legal action.
13    Without paid time off, victims are in danger of losing
14    their jobs.
15        (5) Employed individuals who have court appointments,
16    sentencing hearings, probation, conditional discharge,
17    parole, or mandatory supervised release requirements, or
18    are visiting a family member in jail or prison need paid
19    time off work so that their families do not fall further
20    into economic jeopardy and so that they are not further
21    penalized, as these court-related events are frequently
22    scheduled during work hours.
23        (6) Employers that provide paid sick time see better
24    productivity, reduced flu contagion, and lower turnover,
25    which saves them the costs of replacing and training
26    workers.



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1    (b) This Act is enacted to establish the Healthy Workplace
2Act to provide at least a minimum time-off standard of paid
3sick time for all workers.
4    Section 10. Definitions. As used in this Act:
5    "Child" means a son or daughter who is a biological,
6adopted, or foster child, a stepchild, a legal ward, a child of
7a person standing in loco parentis, or any other individual
8whose close association with the employee is the equivalent of
9a child.
10    "Construction industry" means any constructing, altering,
11reconstructing, repairing, rehabilitating, refinishing,
12refurbishing, remodeling, remediating, renovating, custom
13fabricating, maintenance, landscaping, improving, wrecking,
14painting, decorating, demolishing, or adding to or subtracting
15from any building, structure, highway, roadway, street,
16bridge, alley, sewer, ditch, sewage disposal plant,
17waterworks, parking facility, railroad, excavation or other
18structure, project, development, real property, or
19improvement, or to do any part thereof, whether or not the
20performance of the work herein described involves the addition
21to or fabrication into, any structure, project, development,
22real property, or improvement herein described of any material
23or article of merchandise.
24    "Construction industry" also includes moving construction
25related materials on the job site or to or from the job site,



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1snow plowing, snow removal, and refuse collection.
2    "Department" means the Illinois Department of Labor.
3    "Employ" means to suffer or permit to work.
4    "Employee" means any person who performs services for an
5employer for wage, remuneration, or other compensation. This
6includes persons working any number of hours, including a
7full-time or part-time status.
8    "Employee" does not include any person who the employer
10            (A) has been and will continue to be free from
11        control and direction over the performance of their
12        work, both under a contract of service and in fact;
13            (B) is engaged in an independently established
14        trade, occupation, profession or business; or
15            (C) is deemed a legitimate sole proprietor or
16        partnership.
17    A sole proprietor or partnership shall be deemed to be
18legitimate if the employer establishes that:
19        (1) the sole proprietor or partnership is performing
20    the service free from the direction or control over the
21    means and manner of providing the service, subject only to
22    the right of the employer for whom the service is provided
23    to specify the desired result;
24        (2) the sole proprietor or partnership is not subject
25    to cancellation or destruction upon severance of the
26    relationship with the employer;



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1        (3) the sole proprietor or partnership has a
2    substantial investment of capital in the sole
3    proprietorship or partnership beyond the ordinary tools
4    and equipment and a personal vehicle;
5        (4) the sole proprietor or partnership owns the
6    capital goods and gains the profits and bears the losses
7    of the sole proprietorship or partnership;
8        (5) the sole proprietor or partnership makes its
9    services available to the general public on a continuing
10    basis;
11        (6) the sole proprietor or partnership includes
12    services rendered on a Federal Income Tax Schedule as an
13    independent business or profession;
14        (7) the sole proprietor or partnership performs
15    services for the contractor under the sole proprietor's or
16    partnership's name;
17        (8) when the services being provided require a license
18    or permit, the sole proprietor or partnership obtains and
19    pays for the license or permit in the sole
20    proprietorship's or partnership's name;
21        (9) the sole proprietor or partnership furnishes the
22    tools and equipment necessary to provide the service;
23        (10) if necessary, the sole proprietor or partnership
24    hires its own employees without approval of the employer,
25    pays the employees without reimbursement from the employer
26    and reports the employees' income to the Internal Revenue



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1    Service;
2        (11) the employer does not represent the sole
3    proprietorship or partnership as an employee of the
4    employer to the public; and
5        (12) the sole proprietor or partnership has the right
6    to perform similar services for others on whatever basis
7    and whenever it chooses.
8    Nothing in this Act shall hinder or prohibit the ability
9of any employee, including those as defined in the federal
10Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.)
11from taking uncompensated time off due to any reason for leave
12allowable for paid sick time under Section 15 of this Act.
13    "Employer" means any individual; person; partnership;
14association; corporation; limited liability company; business
15trust; employment or labor placement agency or business where
16wages are made directly or indirectly by the agency or
17business for work undertaken by the employee under hire to a
18third party pursuant to a contact between the agency or
19business with the third party; the State of Illinois and local
20governments; or any political subdivision of the State or
21local government, or State or local government agency; for
22which one or more persons is gainfully employed, express or
23implied, whether lawfully or unlawfully employed, who employs
24a worker or who employs a worker not excluded as an employee
25pursuant to the definition of "employee" or, notwithstanding
26any other law, who is the employer or joint employer for



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1collective bargaining purposes of a bargaining unit of
2employees. "Employer" does not include school districts
3organized under the School Code, park districts organized
4under the Park District Code, or any City of Chicago Sister
5Agency under the Chicago Minimum Wage and Paid Sick Leave
6Ordinance as of the effective date of this Act.
7    "Family member" means a child, spouse, parent, child or
8parent of an employee's spouse, sibling, grandparent,
9grandchild, or any other individual related by blood or whose
10close association with the employee is the equivalent of a
11family relationship.
12    "Health care provider" means a person:
13        (1) who is:
14            (A) licensed to practice medicine in all of its
15        branches in Illinois and possesses the degree of
16        doctor of medicine;
17            (B) licensed to practice medicine in all of its
18        branches in Illinois and possesses the degree of
19        doctor of osteopathy or osteopathic medicine;
20            (C) licensed to practice medicine in all of its
21        branches or as an osteopathic physician in another
22        state or jurisdiction;
23            (D) a chiropractic physician licensed under the
24        Medical Practice Act of 1987; or
25            (E) any other person determined by final rule as
26        of the date this Act becomes law under the Family and



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1        Medical Leave Act of 1993; and
2        (2) who is not employed by an employer to whom the
3    provider issues certifications under this Act.
4    "Paid sick time" means a portion of or an entire scheduled
5or regular workday when an employee is unable to report to work
6because of a reason described in subsection (b) of Section 15.
7    "Parent" means a biological, adoptive, or foster parent, a
8stepparent, a parent of a legal ward, a person who stands in
9loco parentis to an employee or an employee's spouse, or any
10other individual whose close association with the employee is
11the equivalent of a parent.
12    "Spouse" means a party to a marriage or a party to a civil
13union as defined by law.
14    "Victim services organization" means a nonprofit,
15nongovernmental organization that provides assistance to
16victims of domestic or sexual violence, including rape crisis
17centers, organizations carrying out a domestic violence
18program, organizations operating a shelter or providing
19counseling services, and a legal services organization or
20other organization providing assistance through the legal
22    Section 15. Provision of paid sick time.
23    (a) An employee who works in Illinois who is absent from
24work for a reason set forth in subsection (b) is entitled to
25earn and use a minimum of 40 hours of paid sick time during a



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112-month period or a pro rata number of hours of paid sick time
2under the provisions of subsection (c). The 12-month period
3for an employee shall be calculated annually from the date of
4hire or the effective date of this Act, whichever is later.
5    (b) Paid sick time shall be provided to an employee by an
6employer to:
7        (1) care for the employee's own physical or mental
8    illness, injury, or health condition, or seek medical
9    diagnosis or care, or attend a medical appointment,
10    provided the employee is not an employee as defined in the
11    federal Railroad Unemployment Insurance Act (45 U.S.C. 351
12    et seq.);
13        (2) care for the employee's family member who is
14    suffering from a physical or mental illness, injury, or
15    health condition, or seek medical diagnosis or care, or
16    attend a medical appointment;
17        (3) care for a child whose school or place of care has
18    been closed by order of a public official due to a public
19    health emergency or to not go in to work because of the
20    closure of the employee's place of business by order of a
21    public official due to a public health emergency;
22        (4) be absent from work because the employee or the
23    employee's family member is the victim of:
24            (A) domestic violence as defined in Section 103(3)
25        of the Illinois Domestic Violence Act of 1986; or
26            (B) sexual violence, which means:



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1                (i) any conduct proscribed by Article 11 of
2            the Criminal Code of 2012 except Sections 11-35
3            and 11-45;
4                (ii) Sections 12-7.3, 12-7.4, and 12-7.5 of
5            the Criminal Code of 2012, or
6                (iii) a similar provision of the Criminal Code
7            of 1961;
8        (5) be absent from work to visit the employee's family
9    member who is in jail or prison, for the employee to attend
10    his or her own or his or her family member's appointment
11    regarding court sentencing, probation, conditional
12    discharge, parole, or mandatory supervised release
13    requirements, or any other civil or criminal court hearing
14    or trial; or
15        (6) care for the employee's own illness or the
16    employee's family member who is suffering from an illness,
17    injury, or health condition, or seek medical diagnosis or
18    care, or attend a medical appointment arising out of
19    exposure to COVID-19.
20    (c) Paid sick time shall accrue at the rate of one hour of
21paid sick time for every 40 hours worked up to a minimum of 40
22hours of paid sick time unless the employer selects a higher
23limit. Employees who are exempt from the overtime requirements
24of the federal Fair Labor Standards Act (29 U.S.C. 213(a)(1))
25shall be deemed to work 40 hours in each work week for purposes
26of paid sick time accrual unless their normal work week is less



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1than 40 hours, in which case paid sick time accrues based on
2that normal work week. Employees shall determine how much paid
3sick time they need to use, provided that employers may set a
4reasonable minimum increment for the use of paid sick time not
5to exceed 4 hours per day.
6    (d) Employees shall be paid their regular rate of pay for
7paid sick time. However, employees engaged in an occupation in
8which gratuities or commissions have customarily and usually
9constituted and have been recognized as part of the
10remuneration for hire purposes shall be paid by their employer
11at least the full minimum wage in the jurisdiction in which
12they are employed when paid sick time is taken. Paid sick time
13under this Act shall not be charged or otherwise credited to
14employee vacation accounts.
15    (e) Paid sick time shall begin to accrue at the
16commencement of employment or on the effective date of this
17Act, whichever is later. Employees shall be entitled to begin
18using paid sick time 180 days following commencement of their
19employment or 180 days following the effective date of this
20Act, whichever is later. Nothing in this Section shall be
21construed to discourage or prohibit an employer from allowing
22the use of paid sick time at an earlier date than this Section
23requires. Nothing in this Act shall be construed to discourage
24employers from adopting or retaining paid sick time policies
25more generous than policies that comply with the requirements
26of this Act.



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1    (f) An employer may require certification of the
2qualifying illness, injury, or health condition, or for time
3used pursuant to item (1) or (2) of subsection (b), when paid
4sick time used covers more than 3 consecutive workdays. Any
5reasonable documentation signed by a health care provider of
6the employee's choice involved in following or treating the
7illness, injury, or health condition, and indicating the need
8for the amount of sick time taken, shall be deemed acceptable
9certification. Nothing in this Act shall be construed to
10require an employee to provide as certification any
11information from a health care provider that would be a
12disclosure in violation of Section 1177 of the Social Security
13Act or the regulations promulgated pursuant to the federal
14Health Insurance Portability and Accountability Act of 1996.
15If an employer possesses health information or any information
16related to domestic or sexual violence about an employee or
17employee's family member, the information shall be treated as
18confidential and not disclosed except with the permission of
19the affected employee. For paid sick time used pursuant to
20item (4) of subsection (b), any one of the following is
21acceptable documentation, and only one of the following shall
22be required: a police report, court document, any reasonable
23documentation signed by a health care provider, or signed
24statement from an attorney, a member of the clergy, a victim
25services organization or advocate, or the employee. It is up
26to the employee to determine which documentation to submit. If



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1a document has been submitted, the employer shall not request
2or require any other document if the reason for the sick time
3is related to the same incident of violence or the same
4perpetrator of the violence. The employer shall not delay the
5commencement of leave taken for purposes of subsection (b) nor
6delay pay for this period on the basis that the employer has
7not yet received the certification.
8    (g) Paid sick time shall be provided upon the oral request
9of an employee. If the necessity for paid sick time under this
10Act is foreseeable, the employee shall provide the employer
11with not less than 7 days' notice before the date the leave is
12to begin. If the necessity for leave is not foreseeable, the
13employee shall provide such notice as soon as is practical
14after the employee is aware of the necessity of the leave. An
15employer may not require, as a condition of providing paid
16sick time under this Act, that the employee search for or find
17a replacement worker to cover the hours during which the
18employee is on paid sick time leave.
19    (h) Paid sick time shall carry over annually to the extent
20not used by the employee, provided that nothing in this Act
21shall be construed to require an employer to allow use of more
22than 40 hours of paid sick time for an employee unless the
23employer agrees to do so.
24    (i) It is unlawful for an employer to interfere with,
25restrain, deny, change work days or hours scheduled to avoid
26paying sick time, or discipline an employee for the exercise



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1of, or the attempt to exercise, any right provided under or in
2connection with this Act, including considering the use of
3paid sick time as a negative factor in an employment action
4that involves hiring, terminating, evaluating, promoting,
5disciplining, or counting the paid sick time under a no-fault
6attendance policy.
7    (j) During any period an employee takes leave under this
8Act, the employer shall maintain coverage for the employee and
9any family member under any group health plan for the duration
10of such leave at least the level and conditions of coverage as
11would have been provided if the employee had not taken the
13    (k) Nothing in this Section shall be construed as
14requiring financial or other payment to an employee from an
15employer upon the employee's termination, resignation,
16retirement, or other separation from employment for accrued
17paid sick time that has not been used.
18    (l) Nothing in this Section shall be construed to prohibit
19an employer from taking disciplinary action, up to and
20including termination, against an employee who uses paid sick
21time provided pursuant to this Act for purposes other than
22those described in this Section.
23    (m) If an employee is transferred to a separate division,
24entity, or location, but remains employed by the same
25employer, the employee is entitled to all paid sick time
26accrued at the prior division, entity, or location and is



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1entitled to use all paid sick time as provided in this Section.
2If there is a separation from employment and the employee is
3rehired within 12 months of separation by the same employer,
4previously accrued paid sick time that had not been used shall
5be reinstated. The employee shall be entitled to use accrued
6paid sick time at the commencement of employment following a
7separation from employment of 12 months or less.
8    (n) Nothing in this Section shall be deemed to interfere
9with, impede, or in any way diminish the right of employees to
10bargain collectively with their employers through
11representatives of their own choosing in order to establish
12wages or other conditions of work in excess of the applicable
13minimum standards of the provisions of this Act. Nothing in
14this Section shall be deemed to affect the validity or change
15the terms of bona fide collective bargaining agreements in
16force on the effective date of this Act. After the effective
17date of this Act, requirements of this Section may be waived in
18a bona fide collective bargaining agreement, but only if the
19waiver is set forth explicitly in such agreement in clear and
20unambiguous terms. In no event shall this Section apply to any
21employee working in the construction industry who is covered
22by a bona fide collective bargaining agreement.
23    Section 20. Related employer responsibilities.
24    (a) An employer subject to any provision of this Act shall
25make and preserve records documenting hours worked by



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1employees and the amount of paid sick time taken by employees
2for a period of not less than 3 years and shall allow the
3Department access to such records, with appropriate notice and
4a mutually agreeable time, to monitor compliance with the
5requirements of this Section. In addition, the records shall
6be preserved for the duration of any claim pending pursuant to
7Section 35 of this Act.
8    (b) An agreement by employees to waive their rights under
9this Act, except as allowed under subsection (n) of Section
1015, is void as against public policy.
11    (c) Employers who have a paid time off policy that
12complies with the requirements of this Act are not required to
13modify the policy if such policy offers an employee the
14option, at the employee's discretion, to take paid sick time
15that is at least equivalent to the paid sick time described in
16this Act.
17    (d) An employer shall post and keep posted in a
18conspicuous place on the premises of the employer where
19notices to employees are customarily posted, and include in an
20employee manual or policy if the employer has one, a notice, to
21be prepared by the Department, summarizing the requirements of
22this Act and information pertaining to the filing of a charge.
23If an employer's workforce is comprised of a significant
24portion of workers who are not literate in English, the
25employer is responsible for providing the notice in a language
26in which the employees are literate. An employer who willfully



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1violates the notice and posting requirements of this Section
2shall be subject to a civil penalty to be paid to the employee
3in an amount not to exceed $100 for each separate offense.
4    Section 25. Unlawful employer practices. It is unlawful
5for any employer to retaliate or otherwise take any adverse
6action against an employee because the employee (1) exercises
7rights or attempts to exercise rights under this Act, (2)
8opposes practices which such employee believes to be in
9violation of this Act, or (3) supports the exercise of rights
10of another under this Act. Such unlawful employer practices
11include, but are not limited to, any reference to the
12employee's or any of the employee's family members'
13citizenship or immigration status, or any threat to contact or
14actual contact with any local, State, or federal government
15entities regarding the employee's or any of the employee's
16family members' citizenship or immigration status, or sexual
17harassment. Exercising rights under this Act includes filing
18an action or instituting or causing to be instituted any
19proceeding under or related to this Act; providing or agreeing
20to provide any information in connection with any inquiry or
21proceeding relating to any right provided under this Act; or
22testifying to or agreeing to testify in any inquiry or
23proceeding relating to any right provided under this Act.
24    Section 30. Department responsibilities.



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1    (a) The Department shall administer and enforce this Act
2and adopt rules under the Illinois Administrative Procedure
3Act for the purpose of this Act. The Department shall have the
4powers and the parties shall have the rights provided in the
5Illinois Administrative Procedure Act for contested cases. The
6Department shall have the power to conduct investigations in
7connection with the administration and enforcement of this
8Act, including the power to conduct depositions and discovery
9and to issue subpoenas. If the Department finds cause to
10believe that this Act has been violated, the Department shall
11notify the parties in writing and the matter shall be referred
12to an Administrative Law Judge to schedule a formal hearing in
13accordance with hearing procedures established by rule.
14Administrative decisions shall be reviewed under the
15Administrative Review Law.
16    (b) The Department is authorized to impose civil penalties
17prescribed in Section 35 in administrative proceedings that
18comply with the Illinois Administrative Procedure Act and to
19supervise the payment of the unpaid wages and damages owing to
20the employee or employees under this Act. The Department may
21bring any legal action necessary to recover the amount of
22unpaid wages, damages, and penalties, and the employer shall
23be required to pay the costs. Any sums recovered by the
24Department on behalf of an employee under this Act shall be
25paid to the employee or employees affected. However, 20% of
26any penalty collected from the employer for a violation of



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1this Act shall be deposited into the Healthy Workplace Fund, a
2special fund created in the State treasury that is dedicated
3to enforcing this Act.
4    (c) The Attorney General may bring an action to enforce
5the collection of any civil penalty imposed under this Act.
6    Section 35. Enforcement.
7    (a) An employee who believes his or her rights under this
8Act or any rule adopted under this Act have been violated may,
9within 3 years after the date of the last event constituting
10the alleged violation for which the action is brought, file a
11complaint with the Department or file a civil action.
12    (b) Any employer that violates this Act is liable in a
13claim filed with the Department or in a civil action in circuit
14court to any affected individuals for actual and compensatory
15damages, with interest at the prevailing rate, punitive
16damages, and such equitable relief as may be appropriate, in
17addition to reasonable attorney's fees, reasonable expert
18witness fees, and other costs of the action to be paid by the
19defendant. A civil action may be brought without first filing
20a complaint with the Department. Administrative decisions are
21reviewable under the Administrative Review Law.
22    (c) Any employer that the Department or a court finds by a
23preponderance of the evidence to have knowingly, repeatedly,
24or with reckless disregard violated any provision of this Act
25or any rule adopted under this Act is subject to a civil money



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1penalty to be paid to the employee not to exceed $2,500 for
2each separate offense.
3    Section 90. The State Finance Act is amended by adding
4Section 5.935 as follows:
5    (30 ILCS 105/5.935 new)
6    Sec. 5.935. The Healthy Workplace Fund.
7    Section 97. Severability. The provisions of this Act are
8severable under Section 1.31 of the Statute on Statutes.
9    Section 99. Effective date. This Act takes effect July 1,