McHenry Co. (ECWd) -
Just yesterday we published this article on all the problems surfacing on the Bob Miller departing sick pay bill he submitted for payment.
Well there's more!
You may recall the legal opinion letter from James Kelly on sick pay that had no real legal opinion.
Enjoy the power of Google and the application of Illinois law.
(820 ILCS 115/5) -Sec. 5. Every employer shall pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case later than the next regularly scheduled payday for such employee. Where such employee requests in writing that his final compensation be paid by check and mailed to him, the employer shall comply with this request.
If sick time is compensation as has been claimed, it appears the law does not allow twenty-two years to pass and then demand a payment. I understand the argument that may be used is that he is owed, but that is an argument for the State Labor board in my opinion as the employee has an obligation to request in writing his final compensation. Considering there was no request for all these years, nor any policy that would provide for accumulation of sick leave, we contend he has no standing to have taken that money. Additionally, under contract law he would have to initiate a claim within 10 years and that too has passed.
Even more troubling, the law on sick leave benefits is pretty clear and I believe the payment to Miller was not appropriate and any attorney who did the slightest amount of legal research would come to that conclusion.
"Personal sick leave benefits" means any paid or unpaid time available to an employee as provided through an employment benefit plan or paid time off policy to be used as a result of absence from work due to personal illness, injury, or medical appointment. An employment benefit plan or paid time off policy does not include long term disability, short term disability, an insurance policy, or other comparable benefit plan or policy. (Source: P.A. 99-841, eff. 1-1-17; 99-921, eff. 1-13-17.)
Paid or unpaid applies to being paid for time off and should not be confused to mean they can be paid for not using the sick days. There has been no policy found on sick leave and in light of the above law, it points to such leave being USED, not banked and then converted to a lump sum payment. In fact, everything I have read in the law points to sick leave being directly tied to its use as outlined in the law and NOTHING points to it being eligible for conversion for other forms of compensation except for direct ties to IMRF and through established policies.
Statutory construction tells us sick days are to be used, not collected for years and then converted to a cash payment. Had the legislature intended for unused sick leave to be converted to a cash payment, they would have included it in the law like they did for unused vacation time.
820 ILCS 115/5 - Unless otherwise provided in a collective bargaining agreement, whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all vacation time earned in accordance with such contract of employment or employment policy, the monetary equivalent of all earned vacation shall be paid to him or her as part of his or her final compensation at his or her final rate of pay and no employment contract or employment policy shall provide for forfeiture of earned vacation time upon separation.
The reason sick leave is not mentioned is becuase outside of the Family Medical Leave Act, there is no sick leave law in Illinois.
Who does not understand this? - The act defines "personal sick leave benefits" to include time accrued and available to employees to be used for absences related to personal illness, injury or medical appointments.
Statutory construction tells us sick days are to be used, not collected for years and then converted to a cash payment. We welcome all those great legal minds out there to provide any case law that points to sick days being converted to cash twenty-two years after the fact when there was never a sick leave policy in place.
And yes, we have one more article to share on Sick Pay Gate!