Key updates to Illinois employee handbooks for 2023

Ariel B. Cutts

The best practice for employers is to update their Employee Handbooks at least annually to comply with recently enacted legislation. Here are the top updates effective on January 1, 2023 that every Illinois employer should be making to their Employee Handbook:

  1. Update your discrimination policy and dress code policy. Effective as of January 1, 2023, Illinois law expands the definition of “race” to combat unlawful discrimination so that discrimination based on race also prohibits discrimination based on “traits associated with race, including, but not limited to, hair texture and protected hairstyles such as braids, locks and twists” (emphasis added). Similarly, employee dress code and grooming policies cannot prohibit such hair styles. For more information, Illinois employers can review the aptly named CROWN Act (Create a Respectful and Open Workplace for Natural Hair Act).
  2. Update your bereavement leave policy. Illinois employers with more than 50 employees may need to update their bereavement leave. Illinois employers covered by the Family and Medical Leave Act (FMLA) must allow employees to use up to 2 weeks (10 workdays) of unpaid leave for bereavement leave of any covered family member. The reasons for taking bereavement leave were expanded to include absence due to (i) miscarriage; (ii) unsuccessful assisted reproductive technology or insemination procedure, (iii) failed adoption, (iv) failed surrogacy, (v) negative fertility diagnosis, or (vi) stillbirth. This is a material departure from the previous Illinois law which only required employers to provide unpaid leave to grieve the death of a child. Employers can review the Illinois Bereavement Leave Act for more information.
  3. Update your schedule policies. Under the One Day Rest in Seven (ODRISA) Act, Illinois employers must already provide 24 hours off for employees that work 6 consecutive days in a calendar week. However, this was updated to replace the words “calendar week” with “seven-day period”. This subtle change means that ODRISA applies to any employee working 6 consecutive days regardless of whether they fall within a traditional Sunday to Saturday calendar.
  4. Update your meal break policy. The amendment to ODRISA also requires Illinois employers to provide a second unpaid 20 minute meal break to employees that work a 12 hour shift to take place during the last 4.5 hours of the shift. Employers should take note that if meal breaks provided to employees are unpaid, then the breaks must be increased to 30 minutes in accordance with the Fair Labor Standards Act (FLSA) or the employer risks accusation that the break is a “rest period” instead of a meal break.

In addition to the above Employee Handbook updates, employers nationwide should be tracking the development of possible federal law generally prohibiting all non-competition agreements. The Federal Trade Commission (FTC) issued a proposed rule on January 5, 2023 that would prohibit most non-compete agreements with employees and independent contractors, and would retroactively invalidate already existing non-compete agreements. Although this has not been finalized, employers should begin thinking about how to adequately protect their trade secrets and other sensitive information.