Wednesday, January 4, 2017

Domestic Partners – In or Out of New Employee Sick Leave Act?

With a New Year come new laws, one of them being the Illinois Employee Sick Leave Act (the Act) that became effective on New Year’s Day. We’ve talked about the Act before but in general, the Act (820 ILCS 191) permits employees to use half of their annual accrual of sick leave time for family care purposes. The Act requires Illinois employers, who already provide sick leave benefits to their employees, to allow employees to take said leave for absences due to illness, injury or medical appointment of the employee’s child, spouse, domestic partner, sibling, parent, mother in law, grandparent, or stepparent. The sick leave absences taken by the employee are under the same terms as if the employee themselves were sick and taking leave.

The thing is; there is a slight ambiguity in the Act pertaining to section 10, subsection (a) and (b). Subsection (a) allows an employee to use sick leave absences for any of the listed family members, while subsection (b) allows an employer to limit the number of sick days taken for the listed family members to the number the employee accrues during a six month period. Here’s where the statute may throw you for a loop. Subsection (b) includes the allowance of an employer to limit the amount of days used for a “domestic partner,” while subsection (a) does not include “domestic partner” as a person for whom an employee can take sick leave. The question arises, how could an employer limit the amount of sick leave use for a person who is not identified in the Act as one for whom the employee is eligible to use sick leave at all?

Neither the statute nor floor debates lent insight into whether domestic partners were covered by the Act. Bill sponsors, Robyn Gabel, Illinois state representative of the 18th District and Will Guzzardi of the 39th District, both said in separate emails that the difference in language was a drafting error and we should expect to see a “trailer bill” to correct that error. Accordingly, the Act is intended to include domestic partners in the list of people for whom an employee can use their sick leave.

This type of drafting error doesn’t always occur but when it does it can be a headache. Employers should make sure they stay up to date on new employment laws because if things turn out a little messy, no one wants to be left ill-advised.