On July 29, 2016, Governor Rauner signed the Child Bereavement Leave Act (the “Act”), making Illinois one of only two states (Oregon being the first in 2014) to require covered employers to provide unpaid leave in the event of the death of an employee’s child. The Act, effective immediately, requires employers with 50 or more employees to provide employees with up to two weeks (10 working days) of unpaid leave, also known as child bereavement leave.
Employers and employees under the Act are defined in the same way as they are under the Family and Medical Leave Act (“FMLA”). Therefore, employees that are eligible to take leave and employers that are required to provide leave under the FMLA also fall under the Act’s provisions.
However, the Act does not create a right for employees to take unpaid leave that exceeds the unpaid leave time available under the FMLA. For example, an employee who has already used all of his or her 12 weeks of FMLA leave cannot take an additional 10 working days because of the death of his or her child (unless the employer chooses to provide additional leave). In the alternative, employees may elect to substitute paid leave for unpaid leave under the Act, but employers may not require employees to do so.
Child Bereavement Leave Under the Act
Under the Act, a “child” is defined broadly as “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.”
Employees may use child bereavement leave for the following reasons:
(1) to attend the funeral or an alternative to the funeral, of a child;
(2) to make arrangements necessitated by the death of a child; or
(3) to grieve the death of a child.
An employee must take child bereavement leave within 60 days after he or she receives notice of the death of a child, and if an employee loses more than one child in a 12-month period, then he or she is entitled to take up to six weeks of unpaid leave in that 12-month period.
Employees must give their employers at least 48 hours’ advance notice of their intent to take child bereavement leave, unless it is unreasonable or impracticable. An employer may also require that the employee provide reasonable documentation such as a death certificate, published obituary, or written verification of death, burial, or memorial services.
The Act’s Impact on Employers
All covered employers – again those with 50 or more employees – should update their employee handbooks and/or leave policies to address the Act’s requirements and to provide notice to employees of their rights under the Act. Additionally, employers should be aware that they are prohibited from retaliating or taking any other adverse actions against employees who exercise their rights, or attempt to do so, under the Act. Aggrieved employees may seek recourse either before the Illinois Department of Labor or in state court for violations of the Act.
Should you have any questions regarding the Act or should you need assistance updating your policies in order to comply with the Act, please contact Kellie Y. Chen at 312-876-7837, E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.