Aug 22, 2022

Illinois Expands Unpaid Bereavement Leave

Beginning January 1, 2023, employers will be required to provide expanded unpaid bereavement leave to eligible Illinois employees under the Family Bereavement Leave Act (“FBLA”). The FBLA amended the Child Bereavement Leave Act (“CBLA”) by expanding the availability of unpaid bereavement leave to cover additional family members and reasons for the leave.

The eligibility requirements for the FBLA mirror those for the Family and Medical Leave Act (“FMLA”). Accordingly, an employee is eligible to take leave under the FBLA if he or she has worked for a covered employer for at least 1,250 hours within the last 12 months, and works at a location where the company has 50 or more employees within a 75-mile radius.

Under the FBLA, eligible employees are entitled to a maximum of 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. The FBLA does not create a right to take unpaid leave in addition to the leave time permitted by the FMLA.

Before passage of the FBLA, bereavement leave was only available for the loss of a child. Under the FBLA, an employee may now take bereavement leave for the following “covered family members:”

  • Child
  • Stepchild
  • Spouse
  • Domestic partner
  • Sibling
  • Parent or step-parent
  • Mother-in-law or father-in-law
  • Grandchild
  • Grandparent

Employees may use family bereavement leave to:

  • Attend the funeral or alternative to a funeral of a covered family member;
  • Make arrangements necessitated by the death of the covered family member; Grieve the death of the covered family member; or
  • Be absent from work due to (i) a miscarriage: (ii) adoption disruption (including, for example, where a birth parent chooses to parent their child in lieu of proceeding with an adoption plan); (iii) a failed surrogacy agreement; (iv) an unsuccessful reproduction procedure (such as an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure); (v) a diagnosis that negatively impacts pregnancy or fertility; or (vi) a stillbirth.

The employee must complete bereavement leave within sixty (60) days from the date that the employee receives notice of the death or the occurrence of a covered event.

Employees must provide their employer with at least forty-eight (48) hours advanced notice of the need to take leave under the FBLA, unless providing such notice is not reasonable and practicable under the circumstances. An employer cannot require an employee to specifically identify which category of event the leave pertains to as a condition of taking leave. However, an employer may require reasonable documentation from the employee. The Illinois Department of Labor is expected to provide additional guidance to employers on what constitutes “reasonable documentation” by publishing a model leave form in the coming months.

In the event an employer commits a violation of the FBLA, employees may file a complaint with the Illinois Department of Labor or a civil action in state court within sixty (60) days of an alleged violation. Civil penalties may also be assessed against an employer for violating the bereavement leave law or retaliating against employees for exercising their rights under same. For a first offense, the civil penalty is up to $500 per affected employee. For any subsequent offense, the civil penalty is up to $1,000 per affected employee.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

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