June 29, 2022

Volume XII, Number 180

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Illinois Expands Child Bereavement Leave for Pregnancy Loss, Unsuccessful Assisted Reproduction, and Failed Adoption

On June 9, 2022, Illinois Governor J.B. Pritzker signed into law SB3120 (the “Amendment”) that offers unpaid bereavement leave for employees dealing with the physical and mental toll of pregnancy loss, unsuccessful fertility treatment, and failed adoption or surrogacy arrangements.

The legislation amends the Illinois Child Bereavement Leave Act in a number of ways, including changing the law’s title to the “Family Bereavement Leave Act” (the “Act”). The Amendment will take effect on January 1, 2023.

Expanded Coverage Under the Act

The Act covers only those Illinois employers subject to the federal Family and Medical Leave Act of 1993 (FMLA), meaning that Illinois employers with fewer than 50 employees in a 75-mile radius are not required to provide family bereavement leave. Covered employers must provide employees a maximum of two weeks (10 workdays) of unpaid leave to attend the funeral or alternative funeral of a child, make arrangements necessitated by the death of a child, and grieve the death of a child. The Amendment would broaden the Act’s coverage to allow leave for bereavement of a “covered family member,” defined not only as an employee’s child, stepchild, foster child, or legal ward, but also a spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. A “domestic partner” is defined broadly 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 that the relationship does not have a formal legal designation.

Importantly, the Amendment authorizes additional reasons for leave, expanding the Act’s benefits to include grief associated with pregnancy loss as well as circumstances related to unsuccessful assisted reproduction and failed adoptions. As amended, the Act now permits unpaid leave for the following circumstances (in addition to the death of a covered family member):

  • a miscarriage,

  • an unsuccessful round of intrauterine insemination or an unsuccessful assisted reproductive technology procedure,

  • a failed adoption match or an adoption that is not finalized because it is contested,

  • a failed surrogacy agreement,

  • a diagnosis that negatively impacts pregnancy or fertility, or

  • a stillbirth.

The Amendment adds a definition of “assisted reproduction” to the Act to include methods of achieving a pregnancy through artificial insemination, embryo transfer, and gamete and embryo donation. In other words, “assisted reproduction” means methods of achieving pregnancy other than sexual intercourse. 

Supporting Documentation

The Amendment clarifies that employers are not required to ask for documentation when an employee requests bereavement leave, although they may do so. In addition, employees taking leave for any of the new permitted reasons (those related to pregnancy loss, failed adoption, or unsuccessful assisted reproduction) may be required by employers to submit reasonable documentation to validate the need for leave. Reasonable documentation in such instances will include:

  • a form completed by a health care practitioner who has treated the employee or the employee’s spouse, domestic partner, or surrogate, or

  • documentation from the adoption or surrogacy organization that the employee worked with related to a qualifying event under the Act.

In either case, the documentation should include a certification that the employee or their spouse or domestic partner experienced an event that qualifies them for leave under the Act. However, an employer may not require the employee to identify precisely which category of event the leave pertains to as a condition of exercising the right to the leave. Per the Amendment, the health care practitioner certification form will be made available by the Illinois Department of Labor (IDOL).

Employee Eligibility, Rights, and Responsibilities

Covered employers must comply with the Act and provide unpaid leave of up to 10 days to any eligible employee with qualifying circumstances. Note that the Act’s eligibility requirements track those of the FMLA, meaning that, to be eligible for the Act’s benefits, an employee must have (i) been employed by the employer for at least one year, (ii) worked at least 1,250 hours in the prior 12 months, and (iii) worked at a worksite with 50 employees or with 50 employees within a 75-mile radius of the worksite. 

To take leave under the Act, employees must provide the employer with oral or written notice at least 48 hours in advance, unless such notice is not reasonable and practical. Employees must complete leave within 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. Employees are entitled to up to 10 days or two weeks of unpaid leave; the Act does not require that those days be taken consecutively. In addition, the Act 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 Act entitles them. Employers cannot require the substitution of paid leave under the Act.

Prohibition on Retaliation

The Act makes it unlawful to discharge, demote, discriminate, or take any adverse action against an employee because of that employee’s exercise or attempted exercise of rights under the Act. It is also illegal to retaliate against any employees who oppose practices that they believe to be in violation of the Act or support anyone’s exercise of rights under the Act, including:

  • commencing an action or proceeding related to the Act,

  • providing information in connection with any proceeding related to rights provided under the Act, or

  • testifying in any related inquiry or proceeding.

Enforcement, Remedies, and Penalties

The Act 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 Act and may order equitable relief. Alternatively, employees may file a written complaint with the IDOL. An employer found to have violated any provision of the Act 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 Illinois Employers Should Do Now

Illinois employers with 50 or more employees within 75 miles should:

  • review their bereavement leave and other leave policies and prepare to modify them as needed to incorporate the new qualifying reasons for bereavement leave under the Act,

  • consider updating employee handbooks as necessary to ensure compliance,

  • make sure that human resources personnel and managers are trained on the modifications to the Act and any employer policies,

  • prepare to notify employees of their rights and responsibilities under the amended Act, and

  • monitor the IDOL guidance page for updates and forms.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 173
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About this Author

Amy Bharj Employment, Labor & Workforce Management Attorney Epstein Becker & Green Chicago, IL
Senior Counsel

AMY BHARJ is a Senior Counsel in the Employment, Labor & Workforce Management practice, in the Chicago office of Epstein Becker Green. In 2020, Ms. Bharj was selected to the Illinois Rising Stars list in the area of Employment & Labor: Employer.

Ms. Bharj:

  • Represents employers across a broad range of industries in district and state courts and before various governmental agencies, including the Equal Employment Opportunity Commission, Occupational Safety and Health Administration, Miami-Dade Commission on Human Rights,...
312-499-1411
Nancy Gunzenhauser Popper Labor Employment Attorney Epstein Becker Law Firm
Member of the Firm

NANCY GUNZENHAUSER POPPER is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Ms. Popper:

  • Counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace

  • Advises employers in all facets of the employment relationship, from pre-employment considerations and hiring to terminations and post-employment...

212-351-3758
Daniel Danny R. Simandl Attorney Labor Law Epstein Becker Chicago
Associate

Employers look to Danny Simandl as a counselor and litigator in key areas of labor and employment law. He helps them create workplaces that optimize operations and benefit their workforces, and he takes a proactive approach to policy development and implementation to ensure employers are always covered and employees are never taken by surprise. Clients also rely on Danny for guidance on matters involving the Occupational Safety and Health Act, the Americans with Disabilities Act, the Affordable Care Act, the Employee Retirement Income Securities Act, and the Family and...

312-499-1428
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