New unpaid leave requirements under the Family Neonatal Intensive Care Leave Act

In August, the Illinois Legislature passed the Family Neonatal Intensive Care Leave Act (Neonatal Care Act), which expands guaranteed and protected unpaid leave available to employees. The Neonatal Care Act grants Illinois employees unpaid leave to care for a child who is a patient in a neonatal intensive care unit (NICU).

The Neonatal Care Act applies to employers with 16 or more employees. The amount of leave that employers must grant to an employee is dependent on the size of the employer. All  employers with 16 to 50 employees must provide employees with 10 days of unpaid leave and employers with 51 or more employees must provide up to 20 days of unpaid leave. Employers are not required to provide unpaid leave to independent contractors under the Neonatal Care Act.

Employees who elect to take leave under the Neonatal Care Act can do so continuously or intermittently. Employers are allowed to set minimum leave requirements prohibiting employees from taking leave in less than two-hour increments. While employers may require documentation or reasonable verification of an employee’s length of stay within a NICU, they are prohibited from requesting any documentation that is protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or any other law.

Employers should take note that unlike many other paid and unpaid leave laws in Illinois, leave under the Neonatal Care Act may be taken in addition to, and upon completion of, leave available under the Family Medical and Leave Act (FMLA). Employers are also prohibited from requiring an employee to use available paid leave instead of taking the leave available under the Neonatal Care Act. However, an employee may choose to use any entitlement for paid or unpaid leave as a substitution for the equivalent amount of leave provided.

Leave under the Neonatal Care Act is protected. Thus, at the conclusion of leave, an employer must reinstate the employee to her/his prior position or an equivalent position without any loss of benefits. Employers are required to maintain the employee’s health insurance similar to the requirements under the FMLA.

Employers are also explicitly prohibited from retaliating against the employee for: (i) exercising the rights guaranteed under the Neonatal Care Act; (ii) opposing practices the employee believes to be in violation of the Neonatal Care Act and; (iii) supporting the right of another to exercise their rights under the Neonatal Care Act. Any employers found in violation of the Neonatal Care Act may be liable for unpaid wages, damages and penalties.

The Neonatal Care Act is effective June 1, 2026, and employers have some time before the new unpaid leave requirement must be provided to eligible employees. However, there were many other changes to employment law this year, including changes to the Victims’ Economic Security and Safety Act, the Nursing Mothers in Workplace Act, and the Military Leave Act. Illinois employers should review and confirm these new legislative amendments and update their policies and procedures as necessary.

Client alert authored by Markeya A. Fowler, (312 849 4126), associate.

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.