Illinois Requires Child Bereavement Leave

Illinois recently joined Oregon as the second state to require certain bereavement leave by passing a law requiring unpaid leave for employees who suffer the death of a child.

Effective as of July 29, 2016 the Child Bereavement and Leave Act requires employers to provide employees with up to two weeks (10 work days) of unpaid leave for attending a funeral, making arrangements necessitated by the child’s death, or grieving. The Act permits an employee to take leave for the death of a child, and “child” is broadly defined to include natural, foster, and adopted children (in addition to a few other legal categories of child). Of note is that the Act is not limited to children under the age of 18.

Relationship with FMLA. In providing for unpaid bereavement leave, the Act goes beyond the scope of the federal Family and Medical Leave Act, which, despite occasional rumors to the contrary, does not provide for bereavement leave.

In other ways, however, the Act closely mirrors the FMLA. It uses FMLA definitions to determine which employers are covered by the bereavement leave requirements and which employees are entitled to leave. Specifically, all public employers are covered, as are all private employers with more than fifty employees for 20 or more weeks during the last year. Employees are eligible for coverage after 1,250 hours of service with an employer during the prior 12 month period.

As with the FMLA, employees may use their own leave as a substitute for leave under the Act—such as vacation days, sick leave and other paid time off. Should an employee suffer from the death of more than one child in a 12-month period, the employee is entitled to a total of six weeks of bereavement leave during that period. However, the Act does not create an entitlement for employees to use more than the FMLA’s twelve week unpaid leave period.

Other Obligations under the Act. In addition to the leave requirement, the Act places the following obligations on both employees and employers.

An employee must complete leave within sixty days of the employee receiving notice of the death of a child; must provide his or her employer with 48 hours’ notice, unless not practicable under the circumstances; and may be required to provide documentation of the need for the leave.

Employers are prohibited from taking adverse action against employees who exercise their rights under the Act. The Illinois Department of Labor will be the enforcement agency. Employees may file a complaint with the Department of Labor or institute a lawsuit.

Moving forward. Illinois employers must be cognizant of this new entitlement. They should ensure their employees are made aware of the Act, that policies are changed as necessary, and that supervisors and human resources professionals know how to comply with the law. As always, contact your regular Hinshaw attorney or Evan Bonnett in our Rockford Office (815-490-4931) with questions.

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