Illinois Law Mandates Unpaid Child Bereavement Leave

By Jody Kahn Mason and Kathryn Montgomery Moran @ Jackson Lewis August 15, 2016

Illinois employers with at least 50 employees must provide employees who suffered the loss of a child with up to two weeks (10 work days) of unpaid leave under the new Child Bereavement Leave Act. The new law took effect immediately upon Governor Bruce Rauner's signature on July 29.

Covered Employees and Employers

Employees otherwise eligible to take leave under the federal Family and Medical Leave Act (FMLA) are eligible to take leave under the act.

Employers under the act are defined in the same manner as they are under the FMLA, which covers employers with at least 50 employees. Thus, employers with fewer than 50 employees will not be required to provide leave under the act.

The act provides that it does not create a right for an employee to take unpaid leave that exceeds the unpaid leave time available under the FMLA. Therefore, it appears that an employee who has used all of his or her allotted 12 weeks of FMLA leave may not take an additional 10 days of leave under the act for reasons related to the death of a child.

Permitted Uses

Leave provided under the act must be used within 60 days after the employee receives notice of the death of his or her child.

Employees may use unpaid bereavement leave:

  • To attend the funeral, or an alternative to a funeral, of a child.
  • To make arrangements necessitated by the death of the child.
  • To grieve the death of the child.

If an employee suffers the death of more than one child in any 12-month period, the employee is entitled to take up to six weeks of unpaid bereavement leave in the 12-month period.

The act defines "child" broadly to include an employee's son or daughter who is a biological, adopted, or foster child, a stepchild, legal ward, or a child of a person standing in loco parentis.

Employee Obligations

Employees must provide their employers with at least 48 hours' advance notice of the intention to take leave under the act, unless it is not reasonable or practicable.

Additionally, employers may require eligible employees to provide reasonable documentation of the need for leave under the act. Such documentation may include a death certificate, published obituary, or written documentation of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

Employee Option to Substitute Paid Leave

Instead of using unpaid leave under the act, employees may elect to substitute paid leave provided under any other federal, state, or local law, collective bargaining agreement, or employer policy, including family, medical, personal, or sick leave. However, employers may not require employees to substitute available paid leave for unpaid leave provided under the act.

Prohibition Against Retaliation

Employers are prohibited from retaliating or taking any other adverse action against employees who:

  • Exercise their rights or attempt to exercise their rights under the act.
  • Oppose practices the employee believes constitute violations of the act.
  • Support the exercise of the rights of others under the act.

Enforcement and Penalties

The Illinois Department of Labor has been directed to administer the act, to adopt any necessary regulations, investigate alleged violations of the act and impose civil penalties for any such violations. Aggrieved employees may file complaints with the Illinois Department of Labor or file a civil action in state court within 60 days of an alleged violation.

Employers who violate any provisions of the act will be assessed a civil penalty not to exceed $500 for the first offense and $1,000 for each subsequent offense.

Employers should update their leave policies or employee handbooks to include notice of employees' rights to take leave under the act, as well as the parameters for the use of such leave.

Jody Kahn Mason and Kathryn Montgomery Moran are attorneys with Jackson Lewis in Chicago. © Jackson Lewis. All rights reserved. Reposted with permission.


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