August 16, 2022Client Alert

Illinois Employees Entitled to Expanded Unpaid Bereavement Leave Under the Family Bereavement Leave Act

Starting on January 1, 2023, employers will be required to provide expanded unpaid bereavement leave available to eligible Illinois employees under the Family Bereavement Leave Act (FBLA). This state-level development is particularly important since, while there has been support to address bereavement leave at the federal level, there has been no movement yet. Thus, state laws addressing bereavement leave requirements may continue to be adopted under the current environment.

Employees are eligible for bereavement leave under the FBLA if they are eligible employees under the federal Family and Medical Leave Act (FMLA). Under the FMLA, an eligible employee is one that has worked for a covered employer for at least 12 months, has worked at least 1,250 hours worked within the last 12 months, and works at a location where the employer has 50 or more employees within a 75 mile radius. Although the FBLA parallels the FMLA’s eligibility requirements, the FBLA does not create a right to take unpaid leave that exceeds, or is in addition to, the leave already permitted by the FMLA.

Before passage of the FBLA, bereavement leave was only available for the loss of a child. Under the FBLA, Illinois employers must provide unpaid leave to eligible employees who experience the death of any “covered family member”, which includes “an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.” Employees may also take unpaid leave for a miscarriage, adoption disruption (including, for example, where a birth parent chooses to parent their child in lieu of proceeding with an adoption plan), a failed surrogacy agreement, an unsuccessful reproduction procedure (such as an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure), a diagnosis that negatively impacts pregnancy or fertility, or a stillbirth.

Under the FBLA, eligible employees are entitled to a maximum of two weeks (10 workdays) of unpaid leave following the death of a covered family member or a covered pregnancy- or adoption-related event. However, if an employee experiences the death of more than one covered family member in a 12-month period, the employee is entitled to take up to six weeks of bereavement leave during the 12-month period.

Like the FMLA, the FBLA requires employees to provide the employer with notice of the employee’s intent to take bereavement leave. The FBLA requires employees to provide 48 hours’ notice to the employer, unless providing notice is not reasonable and practicable. The employee must complete leave within 60 days after the date the employee receives notice of the death or the occurrence of a covered event. Additionally, the employer may, but does not have to, require reasonable documentation from the employee demonstrating the reason for the requested leave. Later this year, the Illinois Department of Labor is expected to publish a model form that complies with the FBLA for employees requesting leave related to the expansion and inclusion of certain pregnancy- or adoption-related covered events. Notably, when leave is requested for a pregnancy- or adoption-related covered event, the employer may not require the employee to identify which category the leave belongs to as a condition of taking leave.

Employers with employees in Illinois should carefully revisit their leave policies and practices (and by implication, their related benefit plan documents, including medical plans that may narrowly limit continuation of coverage in FMLA or military leave scenarios) now to ensure compliance by January 1, 2023. Employers should also consider if, and how, other benefits will continue when an employee is on bereavement leave more broadly and ensure that any leave-related plan language is consistent with the employer’s approach.

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