by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
August 02, 2016
Illinois has passed a law to provide job-protected bereavement leave upon the death of an employee’s child. The law became effective on July 29, 2016, when it was signed by Illinois governor Bruce Rauner.
The new law provides up to 2 weeks of leave upon the loss of a child. Many of the parameters of the leave incorporate or mirror the federal Family and Medical Leave Act. Here are the main provisions of the new law:
Definition of “child”: Biological, adopted, or foster child, stepchild, legal ward, or the child of a person standing in loco parentis. This mirrors the definition of “son or daughter” under the FMLA, except it does not contain the limitation that the child must be under the age of 18.
Eligible employees: As defined by FMLA; currently, employees with 12 months of service and 1250 hours worked in the 12 months prior to the leave, and who work at a site with 50 or more employees within 75 miles.
Covered employers: As defined by FMLA; currently, employers with 50 or more employees.
Length of leave: 2 weeks (10 working days). The leave must be completed within 60 days after the employee receives notice of the child’s death. In the event of the death of more than one child, the employee may take up to 6 weeks of bereavement during a 12-month period.
Relationship with FMLA: Time off under the Illinois bereavement law does not count toward an employee’s FMLA usage because it is not a covered leave reason. However, the law specifies that an employee is not entitled to more unpaid leave than is provided by the FMLA. This means that if an employee has already used 12 weeks of FMLA in a leave year, the employee will not thereafter be able to take bereavement leave under the act. On the other hand, if an employee first takes time off under the Illinois bereavement law, the employee will still have his/her full 12 weeks of FMLA (less any time previously used in the leave year) because the bereavement leave cannot reduce an employee’s FMLA leave entitlement.
Reasons for leave: Bereavement leave may be used to:
- Attend a funeral (or funeral alternative) of the child;
- Make arrangements necessitated by the death of the child; or
- Grieve the death of the child.
Employee notice: The employee must provide at least 48 hours’ advance notice of intent to take bereavement leave, unless such notice is not reasonable and practicable.
Documentation: The employer can require 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.
Use of other leave rights: The employee may elect to substitute other leave rights for the bereavement leave (e.g., PTO, sick time, vacation, etc.). This would enable the employee to receive pay for the time off.
Other employment protections: The Act prohibits the employer from taking adverse action (such as termination) or retaliating against an employee for taking or attempting to take bereavement leave or for supporting the exercise of rights by another employee.
Enforcement: The Illinois Department of Labor has authority to receive complaints and to enforce the new law. An employee may also file a civil action directly in court without first complaining to the Illinois DOL.
Efforts to pass a federal bereavement leave lawThe FMLA does not provide leave for bereavement following the loss of a family member. In recent years there have been efforts to expand FMLA leave rights to include time off for bereavement due to the death of a child. Most notably, the Parental Bereavement Act was introduced in Congress in the summer of 2011, due to the efforts of two fathers who lost children. The law was reintroduced in 2013 and 2015, so far with no success.
Oregon’s family member bereavement leaveThe state of Oregon added family bereavement as a leave reason under the Oregon Family Leave Act (OFLA) effective January 1, 2014. This law is broader than the new Illinois law, in that it provides leave due to the death of a wide array of family members: spouse, domestic or civil partner, child (broadly defined as in FMLA), parent, grandparent, grandchild, or parent-in-law.
Otherwise, the Oregon law is very similar to the new Illinois law. The OFLA bereavement leave reasons are identical to the Illinois leave reasons outlined above. OFLA provides up to 2 weeks of bereavement leave per family member death in a 12-month period, up to the total available OFLA leave (12 weeks less any time used for other purposes within the 12 months). The leave must be completed within 60 days of notice of the death.
MATRIX CAN HELP! Matrix Absence Management is prepared to manage the new Illinois child bereavement leave law. Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].