Journal of Information & Privacy Law

Illinois Employee Sick Leave Act: The false protection of health

By David Wehr, Managing Editor on Tuesday, December 3rd, 2019
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Sickness is an unfortunate constant in life, and the burden of taking time off work to rest and recuperate is often not an option due to the lack of pay for that time off. While medical advancements are making many illnesses a thing of the past and finding new treatments to sicknesses every year, the modern worker is hard pressed find time off work to deal with illness when it raises its vile head. Many modern laborers depend on every dollar their paycheck produces to make ends meet. Even more trying than dealing with one’s own illnesses is attempting to find time off to take care of loved ones who are ill. What have advancements in technology done to change our viewpoint of what should be covered under “sick leave”? Whom should the law allow “sick leave” to be used for?

While the need to be a caretaker for a family member has been recognized in a number of jurisdictions, many states have not addressed these concerns. A study performed by Paycor, a human resources software company, conducted in July 2019, stated that there are less than twenty states that currently have a sick leave law that protects employees taking sick leave to take care of ill family members. Three of these states are California, Washington and Illinois. 

In Illinois, this problem has been recently addressed by the legislature in the past years and is constantly gaining support to provide laws to allow for this critical use of sick leave. 

The state sick leave model:

The solution for this problem proposed by the Illinois legislature was to allow workers who have accumulated “sick time” to use this time to take care of not only their own illness, but illnesses of their loved ones as well. The “Employee Sick Leave Act,” Public Act 99-0841, is

“[a] state law requiring employers to allow employees to use at least a portion of the sick leave time that is already available to them, under certain existing employer policies, to care for certain relatives.  The Act requires employers to allow employees to use such time ‘for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, [domestic partner], sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent, for reasonable periods of time as the employee’s attendance may be necessary, on the same terms upon which the employee is able to use sick leave benefits for the employee’s own illness or injury.’”

Sick leave and its use have become a been a constant issue in labor laws across the country. The law, while created with good intentions has left many aspects open to interpretation. Carol Wood, the People Operations Director at Homebase, stated in her article addressing the updates to Illinois Labor Laws in 2018 that “[t]he Illinois Sick Leave Act,” which took effect on January 1, 2017, “requires employers who provide sick time to allow employees to use sick time to care for a sick family member.” While this requirement stops employers from restricting the use of sick leave to only when an employee is sick, issues in the implementation and enforcement are occurring. The law states:

“An employer may request written verification of the employee’s absence from a health care professional if such verification is required under the employer’s employment benefit plan or paid time off policy.”

In this case, even when time may be used, the employer has a right to require verification of an illness when the sick leave is used. While this provision allows an employer some ability to protect its staffing and ensure that the law is not abused, it almost crosses the line into personal medical information in violation of the Health insurance portability and accountability act, or HIPAA.

One such issue in the statute is the lack of a requirement to provide sick time in general to employees—and that the sick time be compensated. The law states “employers who provide sick time” not “employers are required to provide sick time.” The latter would implement a new requirement that sick time be provided to all employees, not merely that those already provided sick leave can have their time off enforced and used to care for family.

Current Federal sick leave:

Currently, no federal law exists establishing requirements or setting guidelines for sick leave. Though one federal law, the Family and Medical Leave Act of 1993 (“FMLA”), does provide some protections for medical/sick leave. While FMLA protects individuals who take time off for sickness—whether it be for their own, or a spouse or child—only very particular circumstances are covered under this law, and the time taken off is not compensated. The Federal government seems to arbitrarily put emphasis on some illnesses over others. However, should treatment and time off to address sickness be limited to just serious illness? Or just for the employee? The laws currently seem to endorse this view. Also, only a certain amount of time can be taken off each year. Eligible employees are entitled to twelve workweeks of leave in a 12-month period for:

  • -the birth of a child and to care for the newborn child within one year of birth;
  • -the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • -to care for the employee’s spouse, child, or parent who has a serious health condition;
  • -a serious health condition that makes the employee unable to perform the essential functions of his or her job.

While FMLA covers many illnesses and gives a great deal of time to deal with these unfortunate circumstances, pay is not included. The main purpose of FMLA is to provide job security while being able to take care yourself or of loved ones currently suffering. A bonus to FMLA is that it is heavily regulated. According to the statistics from the Department of Labor, Wage and Hour division, the cases brought under FMLA have dropped while the amount employees have received in compensation from the cases has increased. The trend of these cases is showing that the current law is providing protections with an implication that a further protective step may be needed, in relation to the use of sick leave. While FMLA has been a step in the right direction, it has been over 20 years since the passage of the law and amendments should be considered. While the impact on employers must be considered, the issue of providing for an ill family member is a situation that is common to us all. It is understood that often a form of care may be required from family, as a parent watching a sick child, or vice versa. However, it is difficult to take time off to provide that care when it will affect the income into the household. Then, it becomes a question of what will be scarified, health or one’s source of income.

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