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Illinois Employers Must Provide Qualifying Employees Two Weeks of Unpaid Child Bereavement Leave

Illinois is now the second state to require that employers provide unpaid bereavement leave to eligible employees under its Child Bereavement Leave Act. This Act provides that employers with at least 50 employees must provide two weeks (10 working days) of unpaid leave due to the loss of a child. In the event of death of more than one child in a 12-month period, an employee is eligible for up to six weeks of bereavement leave.

Coverage

The Act defines “employers” and “employees” in the same manner as they are defined under the Family Medical Leave Act (FMLA). Thus, an employee will be eligible for child bereavement leave under Illinois law if the employee has been employed by the employer for at least 12 months and has worked at least 1250 hours during the previous 12-month period. However, an employee who has exhausted his or her FMLA leave is not eligible for child bereavement leave under this Act.

While an employee’s eligibility for child bereavement leave is tied to the employee’s FMLA entitlement, the employee’s bereavement leave cannot be deducted from the employee’s available FMLA leave. In other words, an employee can take two weeks of bereavement leave and still be eligible for 12 weeks of FMLA leave for another qualifying event.

The Act defines “child” as “an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

Bereavement Leave

An employee may use bereavement leave to:

  • Attend the funeral or alternative to a funeral of a child;

  • Make arrangements necessitated by the death of the child; or

  • Grieve the death of the child.

Employees must take such leave within 60 days after the date on which they receive notice of the death of the child. Employees who wish to take bereavement leave must provide 48 hours’ advance to their employer, unless providing such notice is not reasonable and practicable.

Employers may require that an employee provide reasonable documentation, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

Substitution of Paid Leave

Under the Act, employees may elect to substitute paid leave, including family, medical, sick, annual, or personal leave, that is available pursuant to federal, state, or local law, a collective bargaining agreement, or employment policy. Unlike FMLA provisions, the right to substitute paid leave rests with the employee and the Act does not provide any right to the employer to require an employee to use available paid leave.

Retaliation and Enforcement

An employer may not retaliate or take any other adverse action against any employee who:

  • Exercises rights or attempts to exercise rights under this Act;

  • Opposes practices which such employee believes to be in violation of the Act; or

  • Supports the exercise of rights of another under this Act.

If an employee feels that his or her rights have been violated under this Act, he or she may file a complaint with the Illinois Department of Labor or file a civil action in court within 60 days after the date of the violation.

An employer who violates this Act is subject to a civil penalty not to exceed $500 for the first offense and not to exceed $1,000 for the second offense.

©2019 Drinker Biddle & Reath LLP. All Rights Reserved

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About this Author

Stephanie Gournis, labor and employment lawyer, Drinker Biddle
Partner

Stephanie Dodge Gournis is engaged exclusively in the representation of management in all aspects of traditional labor and employment matters.

She regularly represents employers in defending administrative and federal/state court complaints involving equal employment opportunity discrimination, retaliatory discharge, harassment, whistleblower rights, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA) and state wage and hour claims. Stephanie also counsels...

312-569-1327
Shavaun Taylor, Employment lawyer, Drinker Biddle
Associate

Shavaun Adams Taylor has experience in single and multi-plaintiff litigation brought under federal and state employment laws against allegations of race, gender, national origin and age discrimination. She also counsels employers in drafting employment-related contracts and revising employment policies and handbooks to ensure compliance with state and federal laws and regulations.

Shavaun defends employers in class and collective actions involving state and federal employment and wage and hour laws, including FLSA, Illinois Wage Payment and Collection Act, Illinois Minimum Wage Law, and the Illinois Day and Temporary Labor Services Act. She also defends employers in other complex litigation matters, including large-scale EEOC systemic investigations involving various allegations of discrimination and disparate impact claims arising out of the use of background checks, government enforcement actions by the Department of Justice involving large-scale electronic discovery requests and multimillion-dollar projected fines, and complex workplace investigations involving claims of discrimination, harassment and retaliation. Shavaun regularly represents and advises hospital and health care providers in labor relations and employment matters.

(312) 569-1340