Full Text of SB0128 97th General Assembly
SB0128 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB0128 Introduced 1/27/2011, by Sen. Martin A. Sandoval SYNOPSIS AS INTRODUCED: |
| | 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.
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| | FISCAL NOTE ACT MAY APPLY | | STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT |
| | A BILL FOR |
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| 1 | | AN ACT concerning employment.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the | 5 | | Healthy Workplace Act. | 6 | | Section 5. Findings and purpose. | 7 | | (a) Findings. 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, or for routine medical care. Almost half of | 11 | | all private sector workers do not earn a single paid sick | 12 | | day per year, with low-income workers significantly worse | 13 | | off. Nationally, over three-quarters of the poorest | 14 | | families, 77 percent, lack any regular paid sick leave. | 15 | | (2) Of those workers who receive paid sick days, few | 16 | | policies, in both the private and public sectors, allow the | 17 | | worker to use it to care for a family member who is ill. | 18 | | (3) The absence of paid sick days forces workers to | 19 | | make untenable choices between needed income and jobs and | 20 | | caring for their own health and their family's health. | 21 | | (4) When parents are available to care for their | 22 | | children who become sick, the children's recovery is | 23 | | faster, more serious illnesses are prevented, and the |
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| 1 | | children's overall mental and physical health is improved. | 2 | | Parents who cannot afford to miss work must send children | 3 | | with a contagious illness to child care or school, | 4 | | contributing to the high rate of infections in child care | 5 | | centers and schools. | 6 | | (5) The working population in Illinois contains a high | 7 | | number of "baby boom" workers approaching retirement age | 8 | | who are increasingly called upon to care for their parents | 9 | | or an impaired spouse. Older workers need time off to care | 10 | | for themselves as well. | 11 | | (6) Preventive and routine medical care helps avoid | 12 | | illness and injury by detecting illnesses early and | 13 | | shortening the duration of illnesses. Providing employees | 14 | | time off to attend to their own health care needs ensures | 15 | | that they will be healthier and more efficient employees. | 16 | | Routine medical care results in savings by detecting and | 17 | | treating illness and injury early and decreasing the need | 18 | | for emergency care. These savings benefit public and | 19 | | private payers of health insurance, including private | 20 | | businesses. It will also reduce the spread of disease | 21 | | within workplaces when sick employees go to work, a | 22 | | practice known as presenteeism. | 23 | | (7) Public health is jeopardized as many workers who do | 24 | | not have paid sick days have the most frequent contact with | 25 | | the public such as workers in food services, nursing homes, | 26 | | child care centers and retail establishments. The spread of |
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| 1 | | contagious diseases such as the flu cannot be stopped | 2 | | without a universally adopted paid sick days policy. | 3 | | (8) Providing 7 paid sick days per year to employees | 4 | | who earn those days is affordable for employers and good | 5 | | for business. Requiring all employers to provide paid sick | 6 | | days levels the playing field among employers. Employers | 7 | | that provide paid sick days see greater retention and avoid | 8 | | the problems of "presenteeism". Studies have shown that | 9 | | costs from on-the-job productivity losses as a result of | 10 | | presenteeism exceed the costs of absenteeism, medical and | 11 | | disability benefits. | 12 | | (b) Purpose. This Act is enacted to establish the Healthy | 13 | | Workplace Act to provide a minimum time-off standard for paid | 14 | | sick days so that workers can care for their own health and the | 15 | | health of their families while prospering at work.
| 16 | | Section 10. Definitions. As used in this Act: | 17 | | (a) "Child" means a person who is a biological, adopted, or | 18 | | foster child, a stepchild, a legal ward, or a child of a person | 19 | | standing in loco parentis, and who is (i) under 18 years of age | 20 | | or (ii) 18 years of age or older and incapable of self-care | 21 | | because of a mental or physical disability. | 22 | | (b) "Department" means the Illinois Department of Labor. | 23 | | (c) "Employee" means any person who performs services for | 24 | | an employer for wage, remuneration, or other compensation. This | 25 | | includes persons working any number of hours, including a |
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| 1 | | full-time or part-time status. | 2 | | (d) "Employer" means one who employs at least one employee, | 3 | | including but not limited to, this State and its political | 4 | | subdivisions, a temporary services agency, employment agency, | 5 | | or employee organization. | 6 | | (e) "Family member" means a child, spouse, parent, or | 7 | | parent-in-law of the employee, or a person with whom the | 8 | | employee has resided in the same household for 6 months or | 9 | | longer. | 10 | | (f) "Healthcare provider" means: | 11 | | (1) a person who: (i) is licensed to practice medicine | 12 | | in all of its branches in Illinois and possesses the degree | 13 | | of doctor of medicine; (ii) is licensed to practice | 14 | | medicine in Illinois and possesses the degree of doctor of | 15 | | osteopathy or osteopathic medicine; or (iii) is licensed to | 16 | | practice medicine in all of its branches or as an | 17 | | osteopathic physician in another state or jurisdiction; or | 18 | | (iv) any other person determined by Final Rule of The | 19 | | Family and Medical Leave Act of 1993 (29 CFR Part 825 Sec. | 20 | | 118); and | 21 | | (2) is not employed by an employer to whom the provider | 22 | | issues certifications under this Act. | 23 | | (g) "Parent" means a biological or adoptive parent, a | 24 | | foster or stepparent, or a person who stands in loco parentis | 25 | | to an employee or an employee's spouse. Parent may also mean a | 26 | | person who is the parent of a child as defined in this section. |
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| 1 | | (h) "Sick day" means a portion of, or a regular workday | 2 | | when an employee is unable to report to work because of a | 3 | | reason described in subsection (b) of Section 15. | 4 | | (i) "Spouse" refers to either member of a married pair as | 5 | | "marriage" is defined by the marriage laws of Illinois. | 6 | | Section 15. Provision of paid sick days. | 7 | | (a) All employees who work in Illinois who are absent from | 8 | | work for the reasons set forth in subsection (b) shall be | 9 | | entitled to earn a maximum of 7 sick days with pay during a | 10 | | 12-month period, or a pro rata number of paid sick days or | 11 | | hours under the provisions of subsection (c). The 12-month | 12 | | period for an employee shall be calculated from the | 13 | | date-of-hire or subsequent anniversary date. | 14 | | (b) Paid sick days shall be provided to an employee by an | 15 | | employer to: | 16 | | (1) care for the employee's own physical or mental | 17 | | illness, or injury or medical condition, or professional | 18 | | medical diagnosis, or care; or | 19 | | (2) care for the employee's family member who is | 20 | | suffering from a physical or mental illness, or injury, or | 21 | | medical condition, or professional medical diagnosis or | 22 | | care; or | 23 | | (3) attend a medical appointment for himself or herself | 24 | | or for that of the employee's family member. | 25 | | (c) Paid sick days shall accrue at the rate of one hour of |
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| 1 | | paid sick time for every 30 hours worked up to the maximum of 7 | 2 | | paid sick days. Employees who are exempt from overtime | 3 | | requirements of the Federal Fair Labor Standards Act (29 USC | 4 | | Sec. 213 (a)(1)) will be assumed
to work 40 hours in each work | 5 | | week for purposes of paid sick day accrual unless their normal | 6 | | work week is less than 40 hours, in which case paid sick days | 7 | | accrue based upon that normal work week. Paid sick days may be | 8 | | used as accrued, or be loaned by the employer, at its | 9 | | discretion, to the employee in advance of such accrual; in such | 10 | | case an employer shall not require an employee to reimburse it | 11 | | for any unearned sick days. For periods of paid sick days that | 12 | | are less than a normal workday, the leave shall be permitted to | 13 | | be used in hourly increments. It is up to the employee to | 14 | | determine how much accrued leave to take under this Act. | 15 | | (d) An employer may require certification of the qualifying | 16 | | illness, injury or health condition when paid sick days cover | 17 | | more than 3 consecutive workdays. Any reasonable documentation | 18 | | signed by a health care provider involved in following or | 19 | | treating the illness, injury or health condition, and | 20 | | indicating the need for the amount of sick days taken, shall be | 21 | | deemed acceptable certification. The certification shall be | 22 | | issued at such time and in such manner that the Department may | 23 | | by regulation require. The employer shall not delay the | 24 | | commencement of leave taken for purposes of subsection (b) or | 25 | | pay for this period on the basis that the employer has not yet | 26 | | received the certification. Nothing in this Act shall be |
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| 1 | | construed to require an employee to provide as certification | 2 | | any information from a healthcare provider that would be in | 3 | | violation of Section 1177 of the Social Security Act or the | 4 | | regulations promulgated pursuant to Section 264(c) of the | 5 | | Health Insurance Portability and Accountability Act, 42 U.S.C. | 6 | | 1320d-2 note. If an employer possesses health information about | 7 | | an employee or employee's family member, such information shall | 8 | | be treated as confidential and not disclosed except with
the | 9 | | permission of the affected employee.
| 10 | | (e) Paid sick days shall be provided upon the oral request | 11 | | of an employee. If the necessity for sick days under this Act | 12 | | is foreseeable, the employee shall provide the employer with | 13 | | not less than 7 days notice before the date the leave is to | 14 | | begin. If the necessity for leave is not foreseeable, the | 15 | | employee shall provide such notice as soon as is practicable | 16 | | after the employee is aware of the necessity of such leave. An | 17 | | employer may not require, as a condition
of providing paid sick | 18 | | days under this Act, that the employee search for or find a | 19 | | replacement worker to cover the hours during which the employee | 20 | | is on paid sick days leave.
| 21 | | (f) Paid sick days shall carry over annually to the extent | 22 | | not used by the employee, provided that nothing in this Act | 23 | | shall be construed to require an employer to allow accumulation | 24 | | of more than 7 paid sick days for an employee unless an | 25 | | employer agrees to do so. | 26 | | (g) It shall be unlawful for an employer to interfere with, |
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| 1 | | restrain, or deny the exercise of, or the attempt to exercise, | 2 | | any right provided under, or in connection with this Act, | 3 | | including but not limited to using the taking of paid sick days | 4 | | as a negative factor in an employment action such as hiring, | 5 | | termination, evaluation, promotion or a disciplinary action, | 6 | | or counting the paid sick days under a no-fault attendance | 7 | | policy. | 8 | | (h) During any period an employee takes leave under this | 9 | | Act, the employer shall maintain coverage for the employee and | 10 | | any family member under any group health plan for the duration | 11 | | of such leave at at least the level and conditions of coverage | 12 | | as would have been provided if the employee had not taken the | 13 | | leave. | 14 | | (i) Nothing in this section shall be construed as requiring | 15 | | financial or other
reimbursement to an employee from an | 16 | | employer upon the employee's termination, resignation, | 17 | | retirement, or other separation from employment for accrued | 18 | | paid sick days that have not been used.
| 19 | | Section 20. Related employer responsibilities. | 20 | | (a) An employer subject to any provision of this Act shall | 21 | | make and preserve records documenting hours worked by employees | 22 | | and the amount of paid sick days taken by employees, for a | 23 | | period of not less than 3 years and shall make reports from the | 24 | | records as prescribed by rule or order of the Director of the | 25 | | Department. |
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| 1 | | (b) An agreement by an employee to waive his or her rights | 2 | | under this Act is void as against public policy. The benefits | 3 | | provided to employees under this Act may not be diminished by a | 4 | | collective bargaining agreement or an employment benefit | 5 | | program or plan entered into or renewed after the effective | 6 | | date of this Act. | 7 | | (c) Nothing in this Act shall be construed to discourage | 8 | | employers from adopting or retaining paid sick day policies | 9 | | more generous than policies that comply with the requirements | 10 | | of this Act and nothing in this Act shall be construed to | 11 | | diminish the obligation of an employer to comply with any | 12 | | contract, collective bargaining agreement, or any employment | 13 | | benefit program or plan that provides greater paid sick day | 14 | | rights to employees than the rights established under this Act. | 15 | | (d) Employers who have a paid time off policy that complies | 16 | | with at least the minimum requirements of this Act shall not be | 17 | | required to modify such a policy if such policy offers an | 18 | | employee the option, at the employee's discretion, to take paid | 19 | | sick days that are at least equivalent to the paid sick days | 20 | | described in this Act. | 21 | | (e) Every employer covered by this Act shall post and keep | 22 | | posted, in conspicuous places on the premises of the employer | 23 | | where notices to employees are customarily posted, a notice, to | 24 | | be prepared or approved by the Director of the Department, | 25 | | summarizing the requirements of this Act and information | 26 | | pertaining to the filing of a charge. If an employer's |
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| 1 | | workforce is comprised of a significant portion of workers who | 2 | | are not literate in English, the employer is responsible for | 3 | | providing the notice in a language in which the employees are | 4 | | literate. The Director shall furnish copies of summaries and | 5 | | rules to employers upon request without charge. | 6 | | Section 25. Unlawful employer practices. | 7 | | It shall be unlawful for any employer to take any adverse | 8 | | action against an employee because the employee (1) exercises | 9 | | rights or attempts to exercise rights under this Act, (2) | 10 | | opposes practices which such employee believes to be in | 11 | | violation of this Act, or (3) supports the exercise of rights | 12 | | of another under this Act. | 13 | | Exercising rights under this Act shall include but not be | 14 | | limited to filing an action, or instituting or causing to be | 15 | | instituted any proceeding under or related to this Act; | 16 | | providing or about to provide any information in connection | 17 | | with any inquiry or proceeding relating to any right provided | 18 | | under this Act; or testifying to, or about to testify in any | 19 | | inquiry or proceeding relating to any right provided under this | 20 | | Act. | 21 | | Section 30. Department responsibilities. | 22 | | (a) The Department shall administer and enforce this Act. | 23 | | An employee or employee representative who believes his or her | 24 | | rights under this Act have been violated may, within 1 year |
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| 1 | | after the alleged violation occurs, file a complaint with the | 2 | | Department requesting a review of the alleged violation. | 3 | | (b) The Director of the Department shall adopt rules | 4 | | necessary to administer and enforce this Act in accordance with | 5 | | the Illinois Administrative Procedure Act. The Director shall | 6 | | have the powers and the parties shall have the rights provided | 7 | | in the Illinois Administrative Procedure Act for contested | 8 | | cases, including but not limited to, provisions for | 9 | | depositions, subpoena power and procedures, and discovery. | 10 | | (c) The Director of the Department is authorized to | 11 | | supervise the payment of the unpaid wages owing to the employee | 12 | | or employees under this Act and may bring any legal action | 13 | | necessary to recover the amount of unpaid wages and penalties | 14 | | and the employer shall be required to pay the costs. Any sums | 15 | | recovered by the Department on behalf of an employee under this | 16 | | Act shall be paid to the employee or employees affected. | 17 | | (d) The Department shall develop and implement a | 18 | | multilingual outreach program to inform employees, parents, | 19 | | and persons who are under the care of a healthcare provider | 20 | | about the availability of paid sick days under this Act. | 21 | | (e) The Department shall, subject to appropriation, | 22 | | annually compile information on the following and issue an | 23 | | annual report on: | 24 | | (1) The number of employees who used paid sick days; | 25 | | (2) The number of hours of paid sick days used and the | 26 | | reasons for the use; |
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| 1 | | (3) The demographic characteristics of employees | 2 | | (including by gender, race, age, marital status, job | 3 | | industry and job classification, and full or part-time | 4 | | status) who were eligible for and who used paid sick days | 5 | | (including the number of hours used and the reasons for the | 6 | | use); | 7 | | (4) The cost and benefits to employers and employees of | 8 | | implementing the paid sick days policies.
| 9 | | Section 35. Violations and liability. | 10 | | Any employer that violates this Act is liable in a civil | 11 | | action in circuit court to any affected individuals for actual, | 12 | | compensatory, and punitive damages with interest at the | 13 | | prevailing rate and for such equitable relief as may be | 14 | | appropriate. Such action may be brought without first filing an | 15 | | administrative complaint. The court in such an action shall, in | 16 | | addition to any judgment awarded to the plaintiff, allow a | 17 | | reasonable attorney's fee, reasonable expert witness fees, and | 18 | | other costs of the action to be paid by the defendant. | 19 | | Necessary legal action may be brought by the employee or the | 20 | | Department to collect the judgment, and the employer shall be | 21 | | required to pay the costs incurred in collecting the judgment. | 22 | | An action may be brought under this Act no more than 3 years | 23 | | after the date of the last event constituting the alleged | 24 | | violation for which the action is brought. An employer that | 25 | | violates any provision of this Act or any rule adopted under |
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| 1 | | this Act is subject to a civil money penalty not to exceed | 2 | | $2,500 for each separate offense. | 3 | | Section 40. Severability. | 4 | | If any provision of this Act or the application of such | 5 | | provision to any person or circumstance is preempted by or held | 6 | | to be in violation of Illinois or federal law or regulation, | 7 | | the remainder of the provisions of this Act and the application | 8 | | of those provisions to any person or circumstance shall not be | 9 | | affected.
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