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Illinois Amendments Its’ Bereavement Leave Requirement

On June 9, 2022 Illinois amended the state’s Child Bereavement Act and renamed it the Family Bereavement Leave Act (Act). The amendments provide additional reasons for bereavement leave, including the deaths of employees’ family members and to cover pregnancy loss, failed adoptions, unsuccessful reproductive procedures, and other diagnoses or events impacting pregnancy and fertility. The amendments take effect January 1, 2023.

Covered Employers

Employers covered by the law are those that are also covered by the federal Family and Medical Leave Act (FMLA). The FMLA defines a covered employers as a:

  • Private-sector employers, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Eligible Employees

To be eligible for leave, employees must meet the eligibility requirements of the FMLA. Under the FMLA, employees must have worked for the employer for at least 12 months; have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and work at a location where the employer has at least 50 employees within 75 miles.

Covered Family Members

Under the law, “covered family member” means an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Amount of Leave

The law requires an employer to grant to “eligible employees” up to 10 days of unpaid leave on the employee’s first workday of each calendar year. In the event of the death of more than one covered family member in a 12-month period, an employee is entitled to up to a total of 6 weeks of bereavement leave during the 12-month period.

The Act does not create a right for an employee to take unpaid leave that exceeds the unpaid leave time allowed under the FMLA.

Employers may also use an existing leave policy to comply with the law, providing it meets or exceeds that state’s minimum requirements.

Use of Leave

In addition to the new reasons outlined above, leave may also be used to attend the funeral or alternative to a funeral, make arrangements necessitated by the death, or to grieve the death of a covered family member. The leave must be completed within 60 days after the date the employee receives notice of the death of the covered family member. Employers are entitled to 48 hours of notice before the leave unless it is not practicable.

Concurrence with FMLA

Bereavement leave is not generally covered by the FMLA. However, in certain situations, an employee may develop a physical or mental disability due to their grief which may qualify as a “serious health condition” under the FMLA. If leave qualifies as both Family Bereavement Leave and FMLA, they will run concurrently.

Leave Documentation

While an employer may not require an employee to identify the category of event necessitating leave, the employer is permitted to request reasonable documentation from the employee to support a leave request.

Employers may require documentation to verify the necessity of the leave, 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. For leave related to pregnancy loss, failed adoptions, unsuccessful reproductive procedures, and other diagnoses or events impacting pregnancy and fertility, acceptable documentation may be a form, to be provided by the IL Department of Labor (IDOL), to be filled out by a health care practitioner or documentation from the adoption or surrogacy organization that the employee worked with related to a qualifying event.

Next Steps for Employers

Employers with an existing Child Bereavement Leave policy in their employee handbook will need to review an update the policy to comply with the broader coverage requirements and the additional reasons for leave. Employers who currently use a paid time off policy to comply with this law will also want to ensure that the policy provides for leave in a manner that meets or exceeds the amendments.

Employers should also update their internal leave procedures prior to the effective date and ensure that supervisors/managers and those responsible for administering leave have been trained on the updated requirements.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.