THE LAW: How to balance time off with need for work

In January, Illinois passed the Paid Leave for All Workers Act, establishing that effective Jan. 1, 2024, all covered Illinois employers must provide covered employees up to 40 hours of paid leave per year to be used “for any purpose.”

Illinois is the third state with a mandatory paid time off law, following Nevada and Maine.

The law states that covered employees will accrue one hour of paid leave for every 40 hours worked. Employees can accrue up to 40 hours in a 12-month period.

Employees may carry over up to 40 hours of paid leave from one 12-month period to the next. Employees cannot use the paid leave until they have completed 90 calendar days of employment.

Unlike most leave laws like the Family and Medical Leave Act, the new Illinois law expressly prohibits employers from requiring documentation or certification to support an employee’s need for leave.

Like the paid leave laws in Nevada and Maine, the Illinois law states that an employer may not require the employee to provide a reason for taking paid leave or provide any documentation to support the leave.

(Last year, Illinois also passed the Family Bereavement Leave Act expanding unpaid bereavement leave to employees for miscarriage, stillbirth, infertility and adoption loss).

How will new law work?

One question that has arisen: How is this Illinois state law supposed to work with FMLA or other leaves where employees are required to provide the need/certification?

Employees may be able to run one leave and then the other leave, meaning the Illinois employer may not be able to run them concurrently. So, an Illinois employer could end up with employees “stacking” leaves and being gone from work constantly.

The new Illinois law, however, states that employers may adopt a reasonable paid leave policy with notification requirements. For example, an employer may require employees to give up to seven calendar days notice for foreseeable leave and to give notice as soon as practicable for unforeseeable leave.

Impact on work

How would this new Illinois Paid Leave Act affect a hypothetical employer with employees in Illinois?

Assuming the employer honored all of the 10 federal holidays, five days of Illinois paid leave, 12 weeks of FMLA (paid or unpaid) and two weeks of vacation, an employee could be gone at least 71 days, or roughly 16.5 weeks.

Assuming a work year of 2,080 hours, the hypothetical employee could be gone 660 hours, or 32 percent of the time.

Is this acceptable attendance?

A company succeeds only if employees perform their duties, but that is impossible if certain employees are gone almost a third of the time.

However, addressing absenteeism is no easy matter. Punishing employees for missing work may not deal with underlying causes and could even make the problem worse. For example, requiring a sick employee to attend work puts other personnel at risk of infection, leading to increased absenteeism and low morale.

Nevertheless, unchecked absenteeism can quickly grow out of control.

Iowa cases

Courts in Iowa have recognized this issue. In the case of Megan Sedlacek v. the University of Iowa, the Iowa Court of Appeals calculated that an employee had missed all or part of 356 workdays over the course of six years, or around one workweek per month!

Although the employee alleged these absences were necessary to accommodate a disability, the court held that the Iowa Civil Rights Act did not require the employer to permit “open-ended intermittent absences for an indefinite period of time.”

The court expressly stated that regular and reliable attendance is an essential function of a job in Iowa.

In addition, the 8th Circuit Court of Appeals in 2018 held that Cargill Meat Solutions Corp. in Ottumwa, Iowa, did not discriminate when it fired an employee who accumulated 195 days of unplanned absences for both personal and medical reasons in less than one year, which the court found amounted to an inability to meet the essential functions of presence at the workplace to do the job.

The court further found that the employee’s desired accommodation of additional absences was not one that would enable her to perform that essential function.

What to do?

Ultimately, management retains a great deal of flexibility in deciding how to promote regular and punctual attendance.

However, employers must train their managers on the various laws that limit the way employers can enforce working hours, including state and federal family medical leave laws, wage and hour laws, military leave laws, disability discrimination laws, and workers’ compensation laws.

A system of checks should be in place to ensure that any sick days taken as a result of serious health conditions, pregnancy -related illness or disability are not used to penalize employees.

And, as the new Illinois law proves, state laws may dramatically affect an employer’s discretion with respect to policies and practices regarding covered absences.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com