Illinois employers must now comply with the Family Bereavement Leave Act, which expands unpaid leave rights for employees due to the loss of a pregnancy, a child, or another covered family member
Employees may take a maximum of two weeks of unpaid leave for any of the events covered by the FBLA
All Illinois employers subject to the federal Family and Medical Leave Act are subject to the FBLA
On January 1, 2023 the Family Bereavement Leave Act (FBLA) went into effect in Illinois. Considered an amendment to the Child Bereavement Leave Act (CBLA), the FBLA supersedes the CBLA and expands unpaid leave rights for employees across Illinois in two important ways.
New Law Covers Fertility and Pregnancy Related Bereavement
Where the CBLA only allowed leave for the death of a biological child or stepchild, foster placement, or adopted child, the new FBLA expands that construct to include pregnancy loss, unsuccessful reproductive procedures, and other events affecting pregnancy or fertility. The FBLA ultimately reshapes the scope of authorized reasons for paid leave time requirements to cover the following circumstances:
- Unsuccessful intrauterine insemination
- Gamete/embryo transfer
- Failed adoption match
- Contested adoption
- Failed surrogacy agreement
- Diagnosis that negatively impacts pregnancy or fertility
Despite the physical and mental toll of pregnancy loss, unsuccessful fertility treatment, and failed adoption or surrogacy arrangement, federal law still does not require giving any leave for bereavement of such losses. This change in Illinois’s legal landscape closes the gap in protection for those who are dealing with fertility/pregnancy-related bereavement. A statement from the Illinois governor’s office said, “It’s our hope that no employee will have to bury their grief and mourn without support and grace during what can be one of the most terrible times of their life. Being pro-family means supporting women throughout their reproductive health journeys, including during loss.”
New Law Covers Bereavement for Family Members
The FBLA also broadens coverage to allow unpaid leave for bereavement of any “covered family member,” defined as not only an employee’s child, but also a spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.
A “domestic partner” is broadly defined to include a person legally recognized as the domestic partner of the employee under any domestic partnership or civil union law or an unmarried adult person who is in a committed, personal relationship with the employee and is designated to the employee’s employer as that employee’s domestic partner, notwithstanding any formal legal designation of the relationship.
Employees May Take Up to Two Weeks Leave
Employees may take a maximum of two weeks (10 workdays) of unpaid leave for any of the events covered by the FBLA to grieve, attend a funeral, and/or make arrangements necessitated by the death of the covered family member. The FBLA does not require that those days be taken consecutively.
The FBLA permits employees to elect to use other leave accruals to which they may be entitled, including paid leave, such as sick or personal leave, in partial or full substitution for the unpaid leave to which the FBLA entitles them. Employers cannot require the substitution of paid leave.
What Employers Need to Know
All Illinois employers subject to the federal Family and Medical Leave Act are subject to the FBLA.
Employees seeking leave under the Act must provide the employer with oral or written notice at least 48 hours in advance, unless such notice is not reasonable and practical.
Leave under the FBLA must be completed 60 days after the date on which the employee receives notice of the covered family member’s death or experiences any of the other qualifying circumstances.
When an employee requests bereavement leave, employers may—but are not required to—ask the employee to submit reasonable documentation to verify the employee is entitled to leave under the FBLA. Reasonable documentation will include:
- A death certificate or published obituary
- A bereavement leave form, available on the Illinois Department of Labor website, completed by a health care practitioner who has treated the employee or the employee’s covered family member
- Documentation from employee’s adoption or surrogacy organization related to a qualifying event under the FBLA
- Note: An employer may not require the employee to identify the specific event that qualifies them for the leave
The new law makes it unlawful to discharge, demote, discriminate, or take any adverse action against an employee who exercises or attempts to exercise rights under the FBLA.
Importantly, the FBLA provides employees with a private right of action, permitting them to file a civil suit, albeit with a brief statute of limitations of only 60 days. The court is authorized to enjoin any act or practice that violates the FBLA and may order equitable relief to the aggrieved employee. Alternatively, employees may submit a complaint with the IDOL. An employer found to have violated any provision of the FBLA is subject to civil penalties, per employee affected, with a fine of up to $500 for the first offense and subsequent offenses subject to fines of up to $1,000.
What Employers Should Do Right Now
Illinois Employers, as well as employers with employees located in Illinois, should identify steps they may need to take to step into compliance with the changes to Illinois’s Family Bereavement Leave Act.
For instance, you may need to update your current bereavement leave and other leave policies to incorporate the new qualifying reasons for bereavement leave under the FBLA.
Consider updating employee handbooks as necessary to ensure compliance.
Train and educate human resources personnel and managers on the requirements the FBLA brings about, as well as any salient changes to employer policies.
Prepare to notify employees of their rights and responsibilities under the FBLA.
Monitor the IDOL guidance page for updates and forms.
For more information or immediate guidance, contact: