SB3835 96TH GENERAL ASSEMBLY

LRB096 20794 RLC 36552 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB3835

Introduced 2/16/2010, by Sen. Martin A. Sandoval

SYNOPSIS AS INTRODUCED:

New Act

Creates the Healthy Workplace Act. Requires an employer to provide an employee up to 7 sick days with pay during each 12-month period. Provides that an employee may use the sick days care for physical or mental illness, injury, medical condition, professional medical diagnosis or care, or a medical appointment of the employee or a family member. Contains provisions regarding: accrual; certification; notice; responsibilities of employers; unlawful practices; powers and duties of the Department of Labor; violations; penalties; civil liability; severability; and other matters.

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

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) Findings. 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, or for routine medical care. Almost half of all private sector workers do not earn a single paid sick day per year, with low-income workers significantly worse off. Nationally, over three-quarters of the poorest families, 77 percent, lack any regular paid sick leave.

(2) Of those workers who receive paid sick days, few policies, in both the private and public sectors, allow the worker to use it to care for a family member who is ill.

(3) The absence of paid sick days forces workers to make untenable choices between needed income and jobs and caring for their own health and their family's health.

(4) When parents are available to care for their children who become sick, the children's recovery is faster, more serious illnesses are prevented, and the children's overall mental and physical health is improved. Parents who cannot afford to miss work must send children with a contagious illness to child care or school, contributing to the high rate of infections in child care centers and schools.

(5) The working population in Illinois contains a high number of "baby boom" workers approaching retirement age who are increasingly called upon to care for their parents or an impaired spouse. Older workers need time off to care for themselves as well.

(6) Preventive and routine medical care helps avoid illness and injury by detecting illnesses early and shortening the duration of illnesses. Providing employees time off to attend to their own health care needs ensures that they will be healthier and more efficient employees. 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, including private businesses. It will also reduce the spread of disease within workplaces when sick employees go to work, a practice known as presenteeism.

(7) Public health is jeopardized as many workers who do not have paid sick days have the most frequent contact with the public such as workers in food services, nursing homes, child care centers and retail establishments. The spread of contagious diseases such as the flu cannot be stopped without a universally adopted paid sick days policy.

(8) Providing 7 paid sick days per year to employees who earn those days is affordable for employers and good for business. Requiring all employers to provide paid sick days levels the playing field among employers. Employers that provide paid sick days see greater retention and avoid the problems of "presenteeism". Studies have shown that costs from on-the-job productivity losses as a result of presenteeism exceed the costs of absenteeism, medical and disability benefits.

(b) Purpose. This Act is enacted to establish the Healthy Workplace Act to provide a minimum time-off standard for paid sick days so that workers can care for their own health and the health of their families while prospering at work.

Section 10. Definitions. As used in this Act:

(a) "Child" means a person who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, and who is (i) under 18 years of age or (ii) 18 years of age or older and incapable of self-care because of a mental or physical disability.

(b) "Department" means the Illinois Department of Labor.

(c) "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.

(d) "Employer" (i) means any person who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year; (ii) includes: (I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and (II) any successor in interest of an employer; and (iii) includes any State officer, department, or agency, any unit of local government, and any school district.

(e) "Family member" means a child, spouse, parent, or parent-in-law of the employee, or a person with whom the employee has resided in the same household for 6 months or longer.

(f) "Healthcare provider" means:

(1) a person who: (i) is licensed to practice medicine in all of its branches in Illinois and possesses the degree of doctor of medicine; (ii) is licensed to practice medicine in Illinois and possesses the degree of doctor of osteopathy or osteopathic medicine; or (iii) is licensed to practice medicine in all of its branches or as an osteopathic physician in another state or jurisdiction; or (iv) any other person determined by Final Rule of The Family and Medical Leave Act of 1993 (29 CFR Part 825 Sec. 118); and

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

(g) "Parent" means a biological or adoptive parent, a foster or stepparent, or a person who stands in loco parentis to an employee or an employee's spouse. Parent may also mean a person who is the parent of a child as defined in this section.

(h) "Sick day" means a portion of, or a regular workday when an employee is unable to report to work because of a reason described in subsection (b) of Section 15.

(i) "Spouse" refers to either member of a married pair as "marriage" is defined by the marriage laws of Illinois.

Section 15. Provision of paid sick days.

(a) All employees who work in Illinois who are absent from work for the reasons set forth in subsection (b) shall be entitled to earn a maximum of 7 sick days with pay during a 12-month period, or a pro rata number of paid sick days or hours under the provisions of subsection (c). The 12-month period for an employee shall be calculated from the date-of-hire or subsequent anniversary date.

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

(1) care for the employee's own physical or mental illness, or injury or medical condition, or professional medical diagnosis, or care; or

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

(3) attend a medical appointment for himself or herself or for that of the employee's family member.

(c) Paid sick days shall accrue at the rate of one hour of paid sick time for every 30 hours worked up to the maximum of 7 paid sick days. Employees who are exempt from overtime requirements of the Federal Fair Labor Standards Act (29 USC Sec. 213 (a)(1)) will be assumed to work 40 hours in each work week for purposes of paid sick day accrual unless their normal work week is less than 40 hours, in which case paid sick days accrue based upon that normal work week. Paid sick days may be used as accrued, or be loaned by the employer, at its discretion, to the employee in advance of such accrual; in such case an employer shall not require an employee to reimburse it for any unearned sick days. For periods of paid sick days that are less than a normal workday, the leave shall be permitted to be used in hourly increments. It is up to the employee to determine how much accrued leave to take under this Act.

(d) An employer may require certification of the qualifying illness, injury or health condition when paid sick days cover more than 3 consecutive workdays. Any reasonable documentation signed by a health care provider involved in following or treating the illness, injury or health condition, and indicating the need for the amount of sick days taken, shall be deemed acceptable certification. The certification shall be issued at such time and in such manner that the Department may by regulation require. The employer shall not delay the commencement of leave taken for purposes of subsection (b) or pay for this period on the basis that the employer has not yet received the certification. Nothing in this Act shall be construed to require an employee to provide as certification any information from a healthcare provider that would be in violation of Section 1177 of the Social Security Act or the regulations promulgated pursuant to Section 264(c) of the Health Insurance Portability and Accountability Act, 42 U.S.C. 1320d-2 note. If an employer possesses health information about an employee or employee's family member, such information shall be treated as confidential and not disclosed except with the permission of the affected employee.

(e) Paid sick days shall be provided upon the oral request of an employee. If the necessity for sick days 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 practicable after the employee is aware of the necessity of such leave. An employer may not require, as a condition of providing paid sick days 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 days leave.

(f) Paid sick days 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 accumulation of more than 7 paid sick days for an employee unless an employer agrees to do so.

(g) It shall be unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under, or in connection with this Act, including but not limited to using the taking of paid sick days as a negative factor in an employment action such as hiring, termination, evaluation, promotion or a disciplinary action, or counting the paid sick days under a no-fault attendance policy.

(h) 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 at least the level and conditions of coverage as would have been provided if the employee had not taken the leave.

(i) Nothing in this section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for accrued paid sick days that have not been used.

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 days taken by employees, for a period of not less than 3 years and shall make reports from the records as prescribed by rule or order of the Director of the Department.

(b) An agreement by an employee to waive his or her rights under this Act is void as against public policy. The benefits provided to employees under this Act may not be diminished by a collective bargaining agreement or an employment benefit program or plan entered into or renewed after the effective date of this Act.

(c) Nothing in this Act shall be construed to discourage employers from adopting or retaining paid sick day policies more generous than policies that comply with the requirements of this Act and nothing in this Act shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that provides greater paid sick day rights to employees than the rights established under this Act.

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

(e) Every employer covered by this Act shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Director of 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. The Director shall furnish copies of summaries and rules to employers upon request without charge.

Section 25. Unlawful employer practices.

It shall be unlawful for any employer to 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.

Exercising rights under this Act shall include but not be limited to filing an action, or instituting or causing to be instituted any proceeding under or related to this Act; providing or about to provide any information in connection with any inquiry or proceeding relating to any right provided under this Act; or testifying to, or about 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. An employee or employee representative who believes his or her rights under this Act have been violated may, within 1 year after the alleged violation occurs, file a complaint with the Department requesting a review of the alleged violation.

(b) The Director of the Department shall adopt rules necessary to administer and enforce this Act in accordance with the Illinois Administrative Procedure Act. The Director shall have the powers and the parties shall have the rights provided in the Illinois Administrative Procedure Act for contested cases, including but not limited to, provisions for depositions, subpoena power and procedures, and discovery.

(c) The Director of the Department is authorized to supervise the payment of the unpaid wages owing to the employee or employees under this Act and may bring any legal action necessary to recover the amount of unpaid wages 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.

(d) The Department shall develop and implement a multilingual outreach program to inform employees, parents, and persons who are under the care of a healthcare provider about the availability of paid sick days under this Act.

(e) The Department shall, subject to appropriation, annually compile information on the following and issue an annual report on:

(1) The number of employees who used paid sick days;

(2) The number of hours of paid sick days used and the reasons for the use;

(3) The demographic characteristics of employees (including by gender, race, age, marital status, job industry and job classification, and full or part-time status) who were eligible for and who used paid sick days (including the number of hours used and the reasons for the use);

(4) The cost and benefits to employers and employees of implementing the paid sick days policies.

Section 35. Violations and liability.

Any employer that violates this Act is liable in a civil action in circuit court to any affected individuals for actual, compensatory, and punitive damages with interest at the prevailing rate and for such equitable relief as may be appropriate. Such action may be brought without first filing an administrative complaint. The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. Necessary legal action may be brought by the employee or the Department to collect the judgment, and the employer shall be required to pay the costs incurred in collecting the judgment. An action may be brought under this Act no more than 3 years after the date of the last event constituting the alleged violation for which the action is brought. An employer that violates any provision of this Act or any rule adopted under this Act is subject to a civil money penalty not to exceed $2,500 for each separate offense.

Section 40. Severability.

If any provision of this Act or the application of such provision to any person or circumstance is preempted by or held to be in violation of Illinois or federal law or regulation, the remainder of the provisions of this Act and the application of those provisions to any person or circumstance shall not be affected.