The New Chicago and Cook County Paid Sick Leave Ordinances – What Do They Say and How Do They Work?

By E. Christopher Caravette

July 12, 2017

Before July 1, 2017, in Cook County, Illinois, about 40 percent of private-sector workers (or about 840,000 people) were not entitled to any paid sick leave, and many risked losing their jobs if illness kept them from showing up to work. Today, however, all of that changed.

On July 1, 2017, both the City of Chicago and the County of Cook mandated, by ordinances, that employers must provide paid sick leave to employees. The county ordinance allows municipalities in the county to opt out if they so choose. An employer that employs at least 1 covered employee is covered under the ordinance.

Who is covered under the ordinance?

A covered employee under the new ordinances is anyone who works for a covered employer at least 80 hours in any 120-day period, and who works at least 2 hours in any 2-week period within Chicago or any municipality in Cook County that has not opted out.

Time spent traveling within a covered municipality (such as time spent on deliveries or sales calls) counts toward the 2-hour minimum.

Some specific employee exemptions for Chicago are allowed including agricultural employees, outside salespersons, members of religious organizations, students at an Illinois college or university covered by Fair Labor Standards Act, and employees or motor carriers.

Cook County exempts government entities and Indian tribes.

Both Chicago and Cook County exclude construction workers who are subject to collective bargaining agreements.

Ordinance Requirements

The ordinances require that covered employers grant covered employees paid sick time, which will accrue at a rate of at least 1 hour for every 40 hours worked. The maximum mandated amount of paid sick leave is 40 hours in a 12-month period. A 40-hour workweek is assumed for exempt employees (those who are not paid hourly). If the exempt employee works less than 40 hours, the employer has the responsibility of proving it.

Sick leave starts accruing on an employee’s first day of employment after July 1, 2017 (for existing employees, on July 1, 2017). A new employee must wait 180 days to start using the accrued time (this requirement effectively eliminates those who are temporary employees). Employees must be permitted to carry over up to 20 hours (which is half of the yearly allowance) into the following year for any unused time.

Under both ordinances, covered employers are required to post a notice of the employees’ rights at each physical location in Chicago or Cook County, as well as include a notice with each employee’s first paycheck (for current employees, the first paycheck they receive after July 1, 2017).

What is Not Required

Employers are not required to pay out accrued unused sick time upon an employee’s termination of employment, unless they are covered under a collective bargaining agreement that mandates this payment. Employers who already offer paid sick leave that meets the same requirements are not required to provide any additional paid sick leave. Existing paid time off or paid vacation policies can be used to satisfy the ordinances as long as the policy allows employees to use the time for illness as well.

Using Accrued Leave

A covered employee can use accrued sick leave under of the following circumstances:

  • if the employee is ill or injured;
  • if the employee is caring for an ill or injured family member;
  • if the employee is receiving medical care, treatment, diagnosis, or preventive care;
  • if the employee is caring for a family member who is receiving medical care, treatment, diagnosis, or preventive care;
  • if the employee, or a member of his or her family, is the victim of domestic violence or a sex offense; or
  • if the employer’s place of business (or the school of an employee’s child) is closed due to a public health emergency.

Employers may require up to 1 week of notice for leave that is reasonably foreseeable (such as for scheduled doctor appointments). When the need for sick leave is not reasonably foreseeable, employers can only require employees to give as much notice as is practicable under the circumstances. Employers cannot require a sick employee to arrange for a co-worker to fill in for them during the paid sick leave.

If an employee is on paid sick leave for 3 consecutive days, the employer may require proof of the stated reason for taking leave. However, employers cannot require the employee to specify or identify any precise illness, injury or medical condition.

Municipalities Opting Out in Cook County

Many municipalities have opted out of the county ordinance requiring paid sick leave. Included among those now opting out are Arlington Heights, Barrington, Bartlett, Des Plaines, Elk Grove Village, Elmwood Park, Hanover Park, Hickory Hills, Hoffman Estates, Mount Prospect, Niles, Northbrook, Oak Forest, Oak Lawn, Orland Park, Palatine, Rolling Meadows, Rosemont, Schaumburg, South Barrington, Streamwood, Park, and Wheeling.

For additional information, please use the contact form.

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(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)

What Is A HIPAA Authorization, And How Does It Work?

By E. Christopher Caravette

March 24, 2017

In our lifetimes, most of us will face a serious illness or debilitating condition. Most of us also wish our loved ones to be kept well informed about our condition and illness. But unless one has completed and properly executed a Health Insurance Portability and Accountability Act (HIPAA) Authorization, our loved ones may be denied access to that important medical and health information.

The HIPAA Authorization gives healthcare providers permission to share information about your medical conditions and health care with as many people as you wish. But these Authorizations are very specific, and generally require reference to particular people, including spouses, partners, and children, before providers can speak with or provide information to them. Most doctors’ offices and hospitals have these forms available upon request. We also have these forms in office.

It is important to distinguish between a Healthcare Power of Attorney (or Health Care Surrogate Form) and a HIPAA Authorization. The HIPAA Authorization allows access to information, but only a Healthcare Power of Attorney (or Health Care Surrogate Form) allows an individual to make decisions based on that information. Though these other documents also give your agent access to your medical and health information, you should have both documents in place to protect your wishes and allow your loved ones to act on your behalf.

We routinely prepare HIPAA Authorizations for our clients and would be happy to assist you with yours.

For additional information, please contact me at christopher@caravette.com.

LOOK TO US FOR ALL OF YOUR REAL ESTATE, SMALL BUSINESS, AND ESTATE PLANNING LEGAL NEEDS! WE APPRECIATE YOUR BUSINESS!

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)

Be Aware! The New “Florida Ban on Texting While Driving Law” is in Effect!

by E. Christopher Caravette

The new “Florida Ban on Texting While Driving Law” prohibits the act of sending and reading texts, emails, and instant messages while operating a vehicle in the State of Florida.  A violation has been designated a secondary offense.  The first infraction imposes a fine of $30 and is categorized as non-moving.  A second infraction within 5 years imposes a fine of $60 and a moving violation of 3 points.  The law applies to all drivers, including general motorists and commercial drivers.

Be aware! The new law took effect on October 1, 2013!

For a link to the full text of the statute, go to http://www.flsenate.gov/Session/Bill/2013/0052/BillText/Filed/HTML.

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)

 

 

Are your Powers of Attorney Up-to-Date? Changes in both Florida’s and Illinois’ Power of Attorney laws in the past few years may have an impact on those provisions you have already put in place. Now is the time to make sure your Powers of Attorney are as effective as you need them to be!

by E. Christopher Caravette

What is a “Power of Attorney” in the first place?

A Power of Attorney is a legal document that gives another individual the authority to act on your behalf when you do not or cannot act. You are the “principal” and the person you appoint is the “agent”.

There are generally two types of Powers of Attorney:

  • The financial Power of Attorney (in Illinois, called the “Power of Attorney for Property”), for financial and property matters; and,
  • The health care Power of Attorney (in Florida, called the “Health Care Surrogate”), for health care decisions.

Florida

Effective October 1, 2011, Florida’s Power of Attorney law changed drastically.

With respect to a Power of Attorney dealing with financial and property issues, the new law expands on the old law as a result of careful consideration by the Florida legislature and also as a result of experience over time with the provisions of the old law.  Some of the changes in the new law are:

  • Co-agents can exercise authority independently, unless the Power of Attorney provides otherwise.
  • Copies in lieu of original documents are acceptable.

One of the key purposes of the Florida Power of Attorney Act is to clarify the agent’s authority as it might affect the principal’s estate plan.  The principal must specifically acknowledge in the document if:

  • The agent has authority to make changes to the principal’s estate plan.
  • The agent has authority to change the rights of survivorship and beneficiary designations.
  • The agent has authority to waive rights under annuities and retirement plans.
  • The agent has authority to make gifts.

These are called the “superpowers”.  This list is by no means exhaustive, but instead illustrates some of the clarifications which the legislature intended to confer with the new law.  The purpose of these changes is to protect the principal and to clarify what previously was not in the statute.

How does this change in the law affect you?  Well, if you executed a Power of Attorney previous to the change, your Power of Attorney is still effective.  However, because of the change in Florida law, it is advisable to execute new documents to make sure your Power conforms and expresses your unique desires.

Illinois

Effective July 1, 2011, Illinois’ Power of Attorney law changed. The legislature’s goals were to provide more protection to the often-vulnerable principal from financial or physical abuse, and to make the forms more user-friendly.

How has the law changed?

With respect to an Illinois Power of Attorney for Health Care:

  • It incorporates into the new statutory Power of Attorney for Health Care form the latest changes in light of HIPAA and the new Disposition of Re­mains Act.
  •  It deletes use of the outdated medical term “irreversible coma” and replaces it with more medically accepted definitions used in the Health Care Surrogate Act.

With respect to an Illinois Power of Attorney for Property (financial decisions):

  • It elevates the agent’s standard of care, requires more oversight of the agent’s actions, and expands the remedies against an agent who abuses his or her fiduciary responsibilities.
  • It provides a notice to an agent under the Power of Attorney for Property that describes his or her responsibilities.
  • It provides default provisions for co-agents in a non-statutory Power of Attorney for Property.
  • It limits who may act as a witness to the execution of a Power of Attorney to avoid conflicts of interest.

If you executed a Power of Attorney in Illinois previous to this change, your Power of Attorney is still effective.  However, because of the change in Illinois law, it would be prudent to consult with us to make sure any Power still reflects your unique needs and desires.

Our firm has been assisting our clients with their estate planning needs for more than twenty-five years.  Please call us to discuss how this change in both Florida and Illinois law might affect your situation.

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)

Bankruptcy May Not Be Best Option

by Justin Hayford
AIDS Legal Council of Chicago

The bills have been piling up for years — hospital stays, lab tests, credit cards — even that stupid gym membership you can’t use anymore. When your health took a turn for the worse two years ago, you had to quit work, and now you’re living off of $700 a month in Social Security benefits. The minimum monthly payments on all your bills totals about $300, and there’s practically nothing left for your rent and groceries, never mind vitamins and nutritional supplements.

With more and more creditors calling you at all hours of the day, your stress level is churning up your stomach worse than Novir ever did. There is only one way out, you think: declare bankruptcy.

Well, before you blow the few remaining gaskets you’ve got left, take a deep breath while I tell you something that may sound crazy: for you, bankruptcy is a big fat waste of time and money.

All right, time for the beginning of a long, boring legal explanation. The point of personal bankruptcy is not just to wipe out old debts, but to protect your assets from the creditors trying to collect those debts. For example, if you had $10,000 in a savings account, a creditor could sue you for that money. If you owned a house, a creditor could put a lien on it. If you had a job, your wages could be garnished. Bankruptcy can prevent these things from happening.

But you don’t have a savings account, or a house, or a job. In fact, you don’t have anything that a creditor could take from you, even if that creditor sued you in court. In legal talk, you are “judgment-proof.” The law already protects you from your creditors. If you did file bankruptcy, you’d spend about $200 just in court costs (in addition to whatever an attorney might charge you) and end up in essentially the same position you started.

How do you know if you’re judgment-proof? Of course, it’s best to check with an attorney. But first and foremost, creditors cannot take any of your Social Security benefits or your private disability benefits. Those monies are protected by law. They can’t take the clothes off your back or the furniture out of your house (assuming, of course, you don’t have something worth a lot of money, like an expensive grand piano or valuable art). Generally speaking, so long as you own less than $2,000 worth of stuff, and your only income is disability benefits, you’re judgment-proof.

Sometimes you can have a job and still remain judgment-proof. That’s because your wages cannot be garnished unless you make more than a certain minimum amount. According to Illinois law, your wages can only be garnished if, in a week, you make more than 45 times federal minimum wage. Currently minimum wage is $5.15. So if your gross pay is less than $23l.75 a week, then no creditor can garnish your wages.

Of course, if any of the debts you owe are “secured loans,” then being judgment-proof won’t help you with them. A typical secured loan is an automobile loan; your debt is “secured” by the car itself, and if you don’t make your car payments, the car dealer can simply take the car back from you. Even bankruptcy won’t protect you against repossession.

But otherwise, your creditors can’t get anything out of you, so why spend the money and the time filing bankruptcy in court? Even if your creditors take you to court and get a judgment against you, they can’t collect it.

Many people who are judgment-proof want to file bankruptcy to get rid of their student loans. If you’re on Social Security, there is a much easier way to get rid of those loans. You can simply write to the loan company and explain that you are permanently disabled. The company will send papers for you and your doctor to fill out. Often those forms are enough to get your loans cancelled.

Still, many people who are judgment-proof feel a strong desire to file bankruptcy anyway, just to wipe out the old debts. They feel so much stress knowing they owe so much money, and creditors call them all day long. I’ve even had clients whose therapists told them they should file bankruptcy just to relieve personal stress.

Now, I’m all in favor of reducing stress, but if you’re judgment-proof, filing bankruptcy now might put you in a worse situation down the road. As you probably know, you usually can file bankruptcy only once every seven years. So let’s imagine you file now. Your debts are wiped out. But then a few months later you go back to work, then you’re hospitalized and left with a $10,000 bill. Now you’re really stuck; you can’t file bankruptcy for another seven years, and you’ve got an income which the hospital collectors can garnish.

A better way to reduce stress is to explain your predicament to your creditors — or better yet, have a legal advocate intervene on your behalf. If you have a legal representative, then the creditors have to correspond with that representative. In other words, they’ll call and hassle your attorney instead of you.

For many people bankruptcy is, of course, an important part of regaining financial stability. But it isn’t for everyone, and it can leave some people worse off than they were before they filed. No matter what your therapist says, check with an attorney before you get in over your head.

Reprinted from tpanNOW, June/July 2000

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)

Trademarks Fight Time

by Rathe Miller

When Donald Gaffney sued Wal-Mart for trademark violation in 1996, he never pictured himself at the Supreme Court. But when Wal-Mart lost two lower-court rulings for what a judge called “willful piracy,” the giant retailer appealed all the way to the top. Gaffney began hoping that his little case might make a little history.

Instead, the Supreme Court last month handed Gaffney and his children’s clothing company, Samara Bros., a big disappointment. It reversed the decision against Wal-Mart, which had included a $1.2 million judgment. And, responding to years of conflicting signals from lower courts, the justices sent a message not only to Samara but also to bigger firms, such as Nike and Tommy Hilfiger, who have won millions from Wal-Mart: A company has lots of leeway in knocking off your design.

This story dates back to 1996, when Gaffney got a call from JCPenney, a customer, reporting that Wal-Mart was selling copies of Samara seersucker outfits under a house label. For Gaffney, filing suit was about principle — and “protecting our livelihood.” At trial, the evidence seemed compelling: Samara labels were visible in the photos Wal-Mart used to copy the garments. Samara argued that the designs belonged to it exclusively. But the Court said even a “distinctive” design will not be deemed the exclusive property of a company unless the consumer recognized it as the company’s.

But the story isn’t over. The justices sent the case back to the lower courts, and intellectual property lawyers say Samara could still win on several related issues and reclaim its award. The finding doesn’t “negate” Wal-Mart’s “pattern of infringement,” says a spokesman for Nike. Other companies should realize that “there’s more than one way to skin a cat,” says Chicago trademark attorney Jerome Gilson. If they are used correctly, trademark and similar laws can offer companies the protection they need. A Wal-Mart spokesman says the company is heading for the appeals court with “a lot of enthusiasm.”

For the moment, Samara has survived. And Gaffney has had the ride of his life. “Going to the Supreme Court was something to be part of,” he marveled in a recent interview. “I’m a golfer, and it was like teeing off at the Masters.”

FSB May/June 2000

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)

They Told Your HIV Status — Is that Legal?

by Justin Hayford
AIDS Legal Council of Chicago

You’ve been out sick for two weeks, so your boss calls your doctor to find out what’s wrong with you. “It’s pneumonia,” your doctor explains. “People with HIV are particularly susceptible to it.”

After three years of mustering your courage, you finally find the words to tell your mother that you have AIDS. She’s the only person in the family you’ve ever told, and she is supportive and sympathetic, just the way you’d hoped she might be. But the next thing you know you’re getting calls from both your brothers, your sister, and two of your cousins, all expressing their concern about your health problem.

You break your leg and end up in the hospital for a week. When you submit your insurance claim, your insurance company contacts the hospital and asks for your complete medical records. The hospital turns all the records over — even the pages where your HIV status is written.

In each of these three examples, someone disclosed your HIV status without your knowledge or permission. You’ve probably heard that your HIV status is supposed to be confidential, and that certain laws protect that confidentiality. So the question is: did anyone break the law in any of these three examples?

The short answer is yes, although not in all of the examples. And you may be surprised to find out which of these unauthorized disclosures is legal.

OK, let’s back up a minute and look at the law (a project about as exciting as watching paint dry). The Illinois AIDS Confidentiality Act says, “No person may disclose or be compelled to disclose the identify of any person upon whom a (n HIV) test is performed, or the results of such a test in a manner which permits identification of the subject of the test.” In other words, anyone who knows your HIV status can’t tell anyone else without your authorization.

Of course, there are exceptions to this law. For example, if you’re involved in a blood accident with a police officer or paramedic, then those officials can be informed about your HIV status. But generally speaking, in “everyday life” your HIV status is confidential and protected by the AIDS Confidentiality Act. And notice that the law makes it illegal to disclose not only a person’s test result (even if it is negative) but also the identity of a person who is tested. If someone disclosed the mere fact that you had had an HIV test, technically that would be a violation of the law.

Some people have tried to argue that because the law talks about disclosing “test results,” it only applies to doctors, nurses and other medical professionals who see actual lab print-outs. But we at the AIDS Legal Council interpret the law much more broadly. After all, it says that “no person” may disclose test results; it does not say “no health care professional.” And so far, whenever we’ve had to use the law to protect someone’s confidentiality, we’ve been successful.

So let’s look again at our three examples in light of the AIDS Confidentiality Act. In the first, your doctor disclosed your HIV status to your employer without authorization from you. This is about as clear a violation of the AIDS Confidentiality Act as you can get — and a particularly aggravating one at that. If anybody should understand the importance of confidentiality, it’s your doctor. After almost twenty years of the epidemic, it’s clear how easily people can be fired, demoted, transferred, or generally screwed over on the job once their HIV status is known.

So what could you do in this situation? You could bring a lawsuit against your doctor. The law says that for each intentional violation of the Act, a court can award you $5,000 — or more, if, for example, your boss fires you because you have HIV. Of course, bringing a lawsuit is an awful pain in the butt, not to mention a major drain on the T-cells. You might do better to enlist an attorney’s help to settle the whole mess out of court.

How about our second example? Did Mom break the law by telling your brothers, sister and cousins that you have AIDS? You bet she did. And what can you do about it? Well, would you really consider suing your mother over this? Probably not. And even if you did bring a lawsuit, would the judge hold that the AIDS Confidentially Act protects people against private family gossip? Who knows? And even if you win, what then? You can’t garnish your mother’s Social Security check to collect the judgment you’ve been awarded.

Still, perhaps Mom could use a little legal education. Often the AIDS legal Council sends letters to family members, boyfriends or neighbors who have been spreading the word about a client’s HIV status. The letter simply explains the AIDS Confidentiality Act and warns them that continued disclosures could make them liable to a law suit. It usually shuts people up pretty quickly.

And in case you haven’t figured it out yet, our third disclosure — the hospital turning over your HIV status to your insurance company — is perfectly legal. That’s because insurance companies are specifically exempted from the AIDS Confidentiality Act. Your insurer doesn’t need your permission to get your medical records, HIV results and all. What a surprise that in the era of Neo-Conservatism, big business gets off scot-free.

Reprinted from tpanNOW, February/March 2000

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)