97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB0128

 

Introduced 1/27/2011, 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.


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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,
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) 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
13Workplace Act to provide a minimum time-off standard for paid
14sick days so that workers can care for their own health and the
15health 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
18foster child, a stepchild, a legal ward, or a child of a person
19standing in loco parentis, and who is (i) under 18 years of age
20or (ii) 18 years of age or older and incapable of self-care
21because 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
24an employer for wage, remuneration, or other compensation. This
25includes persons working any number of hours, including a

 

 

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1full-time or part-time status.
2    (d) "Employer" means one who employs at least one employee,
3including but not limited to, this State and its political
4subdivisions, a temporary services agency, employment agency,
5or employee organization.
6    (e) "Family member" means a child, spouse, parent, or
7parent-in-law of the employee, or a person with whom the
8employee has resided in the same household for 6 months or
9longer.
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
24foster or stepparent, or a person who stands in loco parentis
25to an employee or an employee's spouse. Parent may also mean a
26person 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
2when an employee is unable to report to work because of a
3reason 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
8work for the reasons set forth in subsection (b) shall be
9entitled to earn a maximum of 7 sick days with pay during a
1012-month period, or a pro rata number of paid sick days or
11hours under the provisions of subsection (c). The 12-month
12period for an employee shall be calculated from the
13date-of-hire or subsequent anniversary date.
14    (b) Paid sick days shall be provided to an employee by an
15employer 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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1paid sick time for every 30 hours worked up to the maximum of 7
2paid sick days. Employees who are exempt from overtime
3requirements of the Federal Fair Labor Standards Act (29 USC
4Sec. 213 (a)(1)) will be assumed to work 40 hours in each work
5week for purposes of paid sick day accrual unless their normal
6work week is less than 40 hours, in which case paid sick days
7accrue based upon that normal work week. Paid sick days may be
8used as accrued, or be loaned by the employer, at its
9discretion, to the employee in advance of such accrual; in such
10case an employer shall not require an employee to reimburse it
11for any unearned sick days. For periods of paid sick days that
12are less than a normal workday, the leave shall be permitted to
13be used in hourly increments. It is up to the employee to
14determine how much accrued leave to take under this Act.
15    (d) An employer may require certification of the qualifying
16illness, injury or health condition when paid sick days cover
17more than 3 consecutive workdays. Any reasonable documentation
18signed by a health care provider involved in following or
19treating the illness, injury or health condition, and
20indicating the need for the amount of sick days taken, shall be
21deemed acceptable certification. The certification shall be
22issued at such time and in such manner that the Department may
23by regulation require. The employer shall not delay the
24commencement of leave taken for purposes of subsection (b) or
25pay for this period on the basis that the employer has not yet
26received the certification. Nothing in this Act shall be

 

 

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1construed to require an employee to provide as certification
2any information from a healthcare provider that would be in
3violation of Section 1177 of the Social Security Act or the
4regulations promulgated pursuant to Section 264(c) of the
5Health Insurance Portability and Accountability Act, 42 U.S.C.
61320d-2 note. If an employer possesses health information about
7an employee or employee's family member, such information shall
8be treated as confidential and not disclosed except with the
9permission of the affected employee.
10    (e) Paid sick days shall be provided upon the oral request
11of an employee. If the necessity for sick days under this Act
12is foreseeable, the employee shall provide the employer with
13not less than 7 days notice before the date the leave is to
14begin. If the necessity for leave is not foreseeable, the
15employee shall provide such notice as soon as is practicable
16after the employee is aware of the necessity of such leave. An
17employer may not require, as a condition of providing paid sick
18days under this Act, that the employee search for or find a
19replacement worker to cover the hours during which the employee
20is on paid sick days leave.
21    (f) Paid sick days shall carry over annually to the extent
22not used by the employee, provided that nothing in this Act
23shall be construed to require an employer to allow accumulation
24of more than 7 paid sick days for an employee unless an
25employer agrees to do so.
26    (g) It shall be unlawful for an employer to interfere with,

 

 

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1restrain, or deny the exercise of, or the attempt to exercise,
2any right provided under, or in connection with this Act,
3including but not limited to using the taking of paid sick days
4as a negative factor in an employment action such as hiring,
5termination, evaluation, promotion or a disciplinary action,
6or counting the paid sick days under a no-fault attendance
7policy.
8    (h) During any period an employee takes leave under this
9Act, the employer shall maintain coverage for the employee and
10any family member under any group health plan for the duration
11of such leave at at least the level and conditions of coverage
12as would have been provided if the employee had not taken the
13leave.
14    (i) Nothing in this section shall be construed as requiring
15financial or other reimbursement to an employee from an
16employer upon the employee's termination, resignation,
17retirement, or other separation from employment for accrued
18paid 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
21make and preserve records documenting hours worked by employees
22and the amount of paid sick days taken by employees, for a
23period of not less than 3 years and shall make reports from the
24records as prescribed by rule or order of the Director of the
25Department.

 

 

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1    (b) An agreement by an employee to waive his or her rights
2under this Act is void as against public policy. The benefits
3provided to employees under this Act may not be diminished by a
4collective bargaining agreement or an employment benefit
5program or plan entered into or renewed after the effective
6date of this Act.
7    (c) Nothing in this Act shall be construed to discourage
8employers from adopting or retaining paid sick day policies
9more generous than policies that comply with the requirements
10of this Act and nothing in this Act shall be construed to
11diminish the obligation of an employer to comply with any
12contract, collective bargaining agreement, or any employment
13benefit program or plan that provides greater paid sick day
14rights to employees than the rights established under this Act.
15    (d) Employers who have a paid time off policy that complies
16with at least the minimum requirements of this Act shall not be
17required to modify such a policy if such policy offers an
18employee the option, at the employee's discretion, to take paid
19sick days that are at least equivalent to the paid sick days
20described in this Act.
21    (e) Every employer covered by this Act shall post and keep
22posted, in conspicuous places on the premises of the employer
23where notices to employees are customarily posted, a notice, to
24be prepared or approved by the Director of the Department,
25summarizing the requirements of this Act and information
26pertaining to the filing of a charge. If an employer's

 

 

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1workforce is comprised of a significant portion of workers who
2are not literate in English, the employer is responsible for
3providing the notice in a language in which the employees are
4literate. The Director shall furnish copies of summaries and
5rules to employers upon request without charge.
 
6    Section 25. Unlawful employer practices.
7    It shall be unlawful for any employer to take any adverse
8action against an employee because the employee (1) exercises
9rights or attempts to exercise rights under this Act, (2)
10opposes practices which such employee believes to be in
11violation of this Act, or (3) supports the exercise of rights
12of another under this Act.
13    Exercising rights under this Act shall include but not be
14limited to filing an action, or instituting or causing to be
15instituted any proceeding under or related to this Act;
16providing or about to provide any information in connection
17with any inquiry or proceeding relating to any right provided
18under this Act; or testifying to, or about to testify in any
19inquiry or proceeding relating to any right provided under this
20Act.
 
21    Section 30. Department responsibilities.
22    (a) The Department shall administer and enforce this Act.
23An employee or employee representative who believes his or her
24rights under this Act have been violated may, within 1 year

 

 

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1after the alleged violation occurs, file a complaint with the
2Department requesting a review of the alleged violation.
3    (b) The Director of the Department shall adopt rules
4necessary to administer and enforce this Act in accordance with
5the Illinois Administrative Procedure Act. The Director shall
6have the powers and the parties shall have the rights provided
7in the Illinois Administrative Procedure Act for contested
8cases, including but not limited to, provisions for
9depositions, subpoena power and procedures, and discovery.
10    (c) The Director of the Department is authorized to
11supervise the payment of the unpaid wages owing to the employee
12or employees under this Act and may bring any legal action
13necessary to recover the amount of unpaid wages and penalties
14and the employer shall be required to pay the costs. Any sums
15recovered by the Department on behalf of an employee under this
16Act shall be paid to the employee or employees affected.
17    (d) The Department shall develop and implement a
18multilingual outreach program to inform employees, parents,
19and persons who are under the care of a healthcare provider
20about the availability of paid sick days under this Act.
21    (e) The Department shall, subject to appropriation,
22annually compile information on the following and issue an
23annual 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
11action in circuit court to any affected individuals for actual,
12compensatory, and punitive damages with interest at the
13prevailing rate and for such equitable relief as may be
14appropriate. Such action may be brought without first filing an
15administrative complaint. The court in such an action shall, in
16addition to any judgment awarded to the plaintiff, allow a
17reasonable attorney's fee, reasonable expert witness fees, and
18other costs of the action to be paid by the defendant.
19Necessary legal action may be brought by the employee or the
20Department to collect the judgment, and the employer shall be
21required to pay the costs incurred in collecting the judgment.
22An action may be brought under this Act no more than 3 years
23after the date of the last event constituting the alleged
24violation for which the action is brought. An employer that
25violates any provision of this Act or any rule adopted under

 

 

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1this 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
5provision to any person or circumstance is preempted by or held
6to be in violation of Illinois or federal law or regulation,
7the remainder of the provisions of this Act and the application
8of those provisions to any person or circumstance shall not be
9affected.