Sep 23, 2016

Some Illinois employers must offer child bereavement leave

Illinois now requires 10 days of unpaid leave for eligible employees who suffer the death of their child. The Illinois Child Bereavement Leave Act was introduced in February 2016 by State Senator Jennifer Bertino-Tarrant and, in May 2016, by House Representative Natalie A. Manley. It passed both Illinois Houses on May 26, 2016, and was signed into law by Governor Rauner on July 29, 2016. The Child Bereavement Leave Act tracks the eligibility requirements of the Family and Medical Leave Act (FMLA) and is immediately effective.

What does the Child Bereavement Leave Act provide?

Unpaid leave permitted

Employers are required to provide their eligible employees with a maximum of two weeks—or 10 work days—of unpaid bereavement leave within 60 days of their child’s death to (1) attend their child’s funeral, (2) make arrangement necessitated by the death of their child or (3) grieve the death of the child. Should an unfortunate employee suffer the death of more than one child in a 12-month period, the employee will be entitled to a total of six weeks of bereavement leave in that period. This leave is not intended to extend the 12 weeks of unpaid leave already provided to employees under the FMLA. However, an employer may always offer more leave, as long as it is provided consistently, to employees who may already have exhausted their FMLA leave time.

Notice required

Employees must give their employers at least 48 hours of advance notice, unless notice is not reasonable or practicable. An employer may request reasonable documentation of the death, including, for example, a death certificate, a published obituary or written verification of the death, burial or memorial service.

Who is eligible?

Employees’ eligibility for child bereavement leave tracks the FMLA. If an employee is eligible for FMLA leave, he or she may request child bereavement leave. Although there are some exceptions, to be eligible for child bereavement leave, an employee must have worked 1,250 hours in the past 12-month period for an employer who employs 50 or more employees within 75 miles of the employee’s worksite.

No retaliation permitted

The Child Bereavement Leave Act prohibits employers from retaliating against any employee who requests or takes bereavement leave under this Act. It also prohibits employers from retaliating against other employees who support a fellow employee’s exercise of rights under this Act.

Who enforces this new Act?

The Illinois Department of Labor has been charged with enforcing this Act and adopting rules under the Administrative Procedure Act for the purpose of administering the law. However, the legislature also has provided employees with a private right of action. The time period to file a charge or complaint is very short; employees only have 60 days from the last wrongful event to bring their complaint to the Department of Labor or to the Circuit Court.

Penalties, recoverable damage and the establishment of the Child Bereavement Fund

The Child Bereavement Leave Act provides civil penalties for wrongful violations: $500 for a first offense, per employee; and $1,000 for a second offense. An aggrieved employee also may recover unpaid wages. Finally, 20 percent of any money collected by the state in enforcing this law will be used to fund a Child Bereavement Fund with the balance paid to the aggrieved employee.

What should employers do?

Employers with more than 50 employees should update their employment policies, including any handbooks, to ensure they provide appropriate leave.

Need more information?

This law became effective immediately, on July 29, 2016. Should you have any questions about the Child Bereavement Leave Act or employment law generally, contact one of Chuhak & Tecson’s Employment attorneys.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Jeralyn H. Baran, Principal