Illinois’ “Child Bereavement Leave Act”

Illinois’ “Child Bereavement Leave Act”

On July 29, 2016, the Illinois General Assembly adopted SB 2613 – the Child Bereavement Leave Act (“Act”) which provides eligible employees with the right to take bereavement leave for the death of a child.  The law went into effect immediately.

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Covered Employers.  The Act defines covered employers the same way the federal Family and Medical Leave Act (FMLA) defines employers.  Therefore, a covered employer is one that is engaged in commerce or any industry affecting commerce, and employs fifty (50) or more employees for each working day of twenty (20) or more calendar weeks during the current or preceding calendar year.

Eligible Employees:  The Act defines eligible employees the same way that the FMLA defines employees.  Therefore, an eligible employee is an employee who has worked for the covered employer for at least 12 months (which does not have to be consecutive); has worked for the covered employer at least 1,250 hours during the 12 consecutive months preceding the start of bereavement leave; and works at a worksite where there are at least 50 employees within a 75-mile radius.

Leave Entitlement.   An eligible employee is entitled to use a maximum of two (2) weeks (10 work days) of unpaid bereavement leave to:

  • Attend the funeral or alternative to a funeral for a child;
  • Make arrangements necessitated by the death of the child; or
  • Grieve the death of the child.

Bereavement leave must be completed within sixty (60) days after the date on which the employee receives notice of the death of the child.

If an employee experiences the death of more than one child in a twelve (12) month period, the employee is entitled to up to a total of six (6) weeks of bereavement leave during the twelve (12) month period.  The Act provides that no right is created for an employee to take unpaid leave exceeding the amount of unpaid leave provided for under the FMLA or in addition to the leave taken under the FMLA.  Therefore, it appears that if the employee’s reason for bereavement leave under the Act also qualifies for FMLA leave (e.g. if the employee’s emotional state while grieving the death of a child is also a “serious health condition” under FMLA), then the two leave entitlements will run concurrently.

Definition of “Child”.  For purposes of the Act, a child means an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.

Notice and Documentation Requirements.  An employee must provide the employer with at least forty-eight (48) hours’ advance notice of the employee’s intention to take bereavement leave, unless such notice is not reasonable or practicable.  Also, an employer may require the employee to provide reasonable documentation (e.g. a death certificate, published obituary, written verification of death, burial, or memorial services from a mortuary or funeral home).

Substitution of Paid Leave.  An employee may use any accrued and available paid leave (e.g. sick leave or personal days) concurrently with the otherwise unpaid bereavement leave.

No Retaliation.  As with almost all other statutes that provide employment benefits or protections to employees, the Act contains an anti-retaliation provision which prohibits an employer from taking any adverse action against an employee who: a) exercises his/her rights or attempts to exercise such rights under the Act; b) opposes practices the employee believes violate the Act; or c) supports another employee’s exercise of his/her rights under the Act.

Enforcement.  The Illinois Department of Labor is charged with administering and enforcing the Act and has the power to investigate violations of the Act and impose civil penalties.  The Illinois Attorney General may also bring civil actions to enforce the collection of civil penalties under the Act.

Take Away:  Covered employers in Illinois should update their employment policies and handbooks to include a description of the new leave entitlement and be sure to appropriately train their supervisors and managers regarding the new law.

Contributor:  Lizbeth V. West, Attorney at Law | Weintraub Tobin