ILLINOIS EXPANDS BEREAVEMENT LEAVE

Posted On June 30, 2022  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

& Marti Cardi, Esq. - Vice President, Product Compliance

June 30, 2022

 

Did you know that Illinois, Oregon, and Washington are the only states that require employers to provide bereavement leave to their employees? Illinois's Child Bereavement leave has been in effect since 2016. Recently, Illinois enacted a law to expand coverage. While the expansion does not increase the entitlement available to Illinois employees, it does increase the reasons and covered relationships.

The Oregon bereavement leave is part of the state's unpaid but job protected Oregon Family Leave Act but is specifically excluded from the state's paid family and medical leave (PFML) program which will go into effect soon. We covered the new Washington bereavement leave in this blog post. It is essentially an additional leave reason under the Washington PFML program. You can learn more about these 2 state programs – and all other state paid leave programs – on our summary of Statutory Disability and Paid Family Leave Laws.

The Current Law

The current law, in effect through December 31, 2022, requires covered employers to provide eligible employees with up to two weeks (or ten workdays) of unpaid leave per death of a child, or up to 30 workdays in the event of the deaths of 3 or more children. The law states it does not create a right for an employee to take unpaid leave that exceeds unpaid leave allowed under the federal Family and Medical Leave Act (FMLA), meaning that an employee who has previously exhausted their FMLA entitlement is not eligible for Child Bereavement leave. However, because the FMLA is a federal law, and employer cannot deny FMLA leave due to an employee’s prior use of the Child Bereavement Law. Here’s more about current leave:

  • Applies to employers who employ 50 or more employees
  • Employees are eligible if they:
    • Have 1250 hours of service with the employer during the past 12 months
    • Have 12 months of service
    • Work at a worksite with at least 50 employees within 75 miles
  • Upon the death of a child:
    • To attend the funeral or alternative to a funeral
    • To make arrangements necessitated by the death of the child
    • To grieve the death of the child
  • Definition of “child” includes biological, adoptive, foster, step, legal ward, and in loco parentis; and has no age limit
  • Up to 2 weeks of unpaid leave per death of the child
    • Maximum of 6 weeks per 12-month period in the event of the death of 3 children
  • Each leave must be completed with 60 days of the employee receiving notice of the death of the child

So What’s Changing?

The expansion takes effect on January 1, 2023, and maintains the same framework of the prior law. Same rules for eligibility and entitlement applies, as well as how the law interacts with the FMLA. However, as mentioned above, the new law has expanded both leave reasons and covered relationships. Here’s more about the new law:

  • Applies to employers who employ 50 or more employees
  • Employees are eligible if they:
    • Have 1250 hours of service with the employer during the past 12 months
    • Have 12 months of service
    • Work at a worksite with at least 50 employees within 75 miles
  • Leave reasons include:
    • Miscarriage
    • Unsuccessful round of an assistive reproductive procedure
    • Failed adoption match or adoption contested by another party
    • Failed surrogacy agreement
    • Diagnosis that negatively impacts pregnancy or fertility
    • Stillbirth
    • Upon the death of a Family Member:
      • To attend the funeral or alternative to a funeral
      • To make arrangements necessitated by the death of the child
      • To grieve the death of the child
  • Family Member” is defined as an employee's child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent
    • Definition of “child” remains the same and includes biological, adoptive, foster, step, legal ward, and in loco parentis; and still has no age limit
    • “Domestic Partner” means the person recognized as the domestic partner of the employee under any domestic partnership or civil union law; or an unmarried adult person who is in a committed, personal relationship with the employee, who is not recognized as a domestic partner under any domestic partnership or civil union law, who is designated to the employee's employer as the employee's domestic partner, and who is not in such a relationship with any other person.
  • Up to 2 weeks of unpaid leave per event
    • Maximum of 6 weeks per 12-month period in the event of the death of family members
    • Each 2 weeks must be completed with 60 days of the employee receiving notice of the event

Under both the current law and the expanded version, the employer is entitled to reasonable documentation. For death of a child or family member, that could mean a death certificate, published obituary, or written verification of death, burial, or memorial service. For all other reasons, documentation completed by a health care provider, adoption or surrogacy agency, or other appropriate party certifying the leave. Additionally, employers are required to maintain health benefits during the leave and to restore employees to their position upon return from the leave.

Matrix Can Help!

Our team of Absence Management Specialists is well versed in all things leave. Be it bereavement, donor, or FMLA leave, Matrix is here to help you stay compliant with state and federal leave requirements. Matrix will be administering the expanded Illinois bereavement law as part of our suite of leave of absence management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

ILLINOIS PASSES CHILD BEREAVEMENT LEAVE ACT – SECOND AFTER OREGON TO PROVIDE BEREAVEMENT LEAVE

Posted On August 02, 2016  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 02, 2016

 

Illinois has passed a law to provide job-protected bereavement leave upon the death of an employee’s child.  The law became effective on July 29, 2016, when it was signed by Illinois governor Bruce Rauner.

The new law provides up to 2 weeks of leave upon the loss of a child.  Many of the parameters of the leave incorporate or mirror the federal Family and Medical Leave Act.  Here are the main provisions of the new law:

Definition of “child”:  Biological, adopted, or foster child, stepchild, legal ward, or the child of a person standing in loco parentis. This mirrors the definition of “son or daughter” under the FMLA, except it does not contain the limitation that the child must be under the age of 18.

Eligible employees:  As defined by FMLA; currently, employees with 12 months of service and 1250 hours worked in the 12 months prior to the leave, and who work at a site with 50 or more employees within 75 miles.

Covered employers:  As defined by FMLA; currently, employers with 50 or more employees.

Length of leave:  2 weeks (10 working days).  The leave must be completed within 60 days after the employee receives notice of the child’s death.  In the event of the death of more than one child, the employee may take up to 6 weeks of bereavement during a 12-month period.

Relationship with FMLA:  Time off under the Illinois bereavement law does not count toward an employee’s FMLA usage because it is not a covered leave reason. However, the law specifies that an employee is not entitled to more unpaid leave than is provided by the FMLA.  This means that if an employee has already used 12 weeks of FMLA in a leave year, the employee will not thereafter be able to take bereavement leave under the act.  On the other hand, if an employee first takes time off under the Illinois bereavement law, the employee will still have his/her full 12 weeks of FMLA (less any time previously used in the leave year) because the bereavement leave cannot reduce an employee’s FMLA leave entitlement.

Reasons for leave:  Bereavement leave may be used to:

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

Employee notice:  The employee must provide at least 48 hours’ advance notice of intent to take bereavement leave, unless such notice is not reasonable and practicable. 

Documentation:  The employer can require reasonable documentation, 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.

Use of other leave rights:  The employee may elect to substitute other leave rights for the bereavement leave (e.g., PTO, sick time, vacation, etc.).  This would enable the employee to receive pay for the time off.

Other employment protections:  The Act prohibits the employer from taking adverse action (such as termination) or retaliating against an employee for taking or attempting to take bereavement leave or for supporting the exercise of rights by another employee.

Enforcement:  The Illinois Department of Labor has authority to receive complaints and to enforce the new law.  An employee may also file a civil action directly in court without first complaining to the Illinois DOL.

Efforts to pass a federal bereavement leave lawThe FMLA does not provide leave for bereavement following the loss of a family member.   In recent years there have been efforts to expand FMLA leave rights to include time off for bereavement due to the death of a child.  Most notably, the Parental Bereavement Act was introduced in Congress in the summer of 2011, due to the efforts of two fathers who lost children. The law was reintroduced in 2013 and 2015, so far with no success.

Oregon’s family member bereavement leaveThe state of Oregon added family bereavement as a leave reason under the Oregon Family Leave Act (OFLA) effective January 1, 2014.  This law is broader than the new Illinois law, in that it provides leave due to the death of a wide array of family members:  spouse, domestic or civil partner, child (broadly defined as in FMLA), parent, grandparent, grandchild, or parent-in-law.

Otherwise, the Oregon law is very similar to the new Illinois law.  The OFLA bereavement leave reasons are identical to the Illinois leave reasons outlined above.  OFLA provides up to 2 weeks of bereavement leave per family member death in a 12-month period, up to the total available OFLA leave (12 weeks less any time used for other purposes within the 12 months).  The leave must be completed within 60 days of notice of the death.

MATRIX CAN HELPMatrix Absence Management is prepared to manage the new Illinois child bereavement leave law.  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.