On June 10, 2022, Illinois Governor JB Pritzker signed the Family Bereavement Leave Act (FBLA) into law. The new legislation expands the state’s existing regime granting unpaid leave to employees following the death of a child to cover other family members and events like miscarriages. How should employers react to the new law?

Bereavement Leave in Illinois

The federal Family Medical Leave Act does not extend to bereavement leave, but Illinois law does. In 2016, the Illinois legislature enacted the Child Bereavement Leave Act, which provided employees with up to ten work days of unpaid leave following the death of a child for them to make arrangements, attend the funeral, and grieve. In addition to biological children, the law covered adopted, fostered, and stepchildren, as well as other formal in loco parentis arrangements. To be eligible for this bereavement leave, an employee must have been on the job for at least twelve months and worked at least 1,250 hours for the employer during that time.

The FBLA expands the scope of the Child Bereavement Leave Act in several ways, two of which are particularly important for employers. First, the FBLA now guarantees bereavement leave following the death of any of the following family members (in addition to a child, which was already covered):

• Spouse or domestic partner,
• Sibling,
• Parent,
• Mother-in-law or father-in-law,
• Grandchild,
• Grandparent, or
• Stepparent.

Second, the new law covers several events resulting in what may be called an unexpected lack of parenthood, including:

• A miscarriage,
• A stillbirth,
• A diagnosis that negatively impacts pregnancy or fertility,
• An “unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure,”
• A failed adoption match or an adoption that is not finalized because it is contested by another party, and
• A failed surrogacy agreement.

The occurrence of any of these events entitles an employee to take the same unpaid bereavement leave discussed above.

Takeaways

The FBLA presents new compliance hurdles for employers and consequences for those that fail to heed it. The Child Bereavement Leave Act made it unlawful for employers to take any adverse action against an employee for using this leave, set forth civil penalties for violations, and provided a cause of action for both employees and the state to sue to enforce it. By expanding the scope of bereavement leave availability for employees, the FBLA also expands the risk of liability for employers.

The FBLA provides some rights to employers as well. For example, it authorizes employers to require “reasonable documentation” that proves the occurrence of any of the leave-triggering events, like a death certificate or published obituary. For the “unexpected lack of parenthood” events, it specifies that new forms created by the Illinois Department of Labor will be made available to streamline this process. Employers should note, however, that the FBLA prohibits them from requiring that an employee “identify which category of event the leave pertains to as a condition of exercising rights under this Act.”

Conclusion

While the FBLA presents new obligations for employers, it will not take effect until Jan. 1 of next year, giving employers time to update their policies to ensure compliance with these new requirements. Additionally, it is expected that the Illinois Department of Labor will issue regulations in the coming months providing guidance on how the new law will be enforced. Taft will monitor the situation and provide updates as they become available.

If you have questions about how to ensure that your workplace policies comply with applicable laws, contact your Taft attorney or any attorney in the FMLA, Attendance and Leaves of Absence team.