On June 10, 2022, Illinois amended its Child Bereavement Leave Act (“CBLA”) to include unpaid leave for employees following an “unexpected lack of parenthood,” and deaths of other family members, including stepchildren, spouses, domestic partners, siblings, parents or stepparents, parents-in-law, grandchildren, or grandparents. The new legislation is known as the Family Bereavement Leave Act (“FBLA”).
Under the CBLA, bereavement leave was only available for the death of a child. “Child” was defined 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.” Under the new legislation, employees can now also take leave to grieve losses connected with fertility and starting a family. These losses include: (1) a miscarriage; (2) an unsuccessful round of an assisted reproductive technology procedure; (3) a failed adoption match or a contested adoption; (4) a failed surrogacy; (5) a diagnosis that negatively impacts pregnancy or fertility; or (6) a stillbirth.
FBLA Eligibility
The FBLA applies to employers with 50+ employees, and employees are only eligible for FBLA leave if they are also eligible under the Federal Family and Medical Leave Act (“FMLA”). Under the FMLA, employees must have worked for the company for at least 1,250 hours within 12 months. They also must work at a location where the company has 50 or more employees within 75 miles. If an employee chooses to take leave under the FBLA, it must be completed within 60 days from when the employee learns of the qualifying event. The FBLA allows an employee to take up to 10 days of unpaid leave for a qualifying event. In situations where more than one covered family member passes away in a 12-month period, an employee can take up to 6 weeks of leave during those 12 months. Notably, the FMLA does not extend to bereavement leave, so employers in states without legislation specifically adopting similar language to that included in the FBLA must manage the loss of expected parenthood without any time to grieve such a loss.
Recommendations for employers and best practices
Illinois employers should review their current policies and make necessary revisions to comply with the FBLA before it becomes effective on January 1, 2023.
Employers outside the state of Illinois should also consider updating their policies to provide their employees with similar leave to the FBLA. Even if your company operates in a state with no bereavement laws, consider increasing the length of leave time employees have and expanding the reasons for leave to include loss associated with fertility and adoption. Not only is it the right thing to do—bereavement policies are also good for business. According to the Harvard Business Review, providing a robust bereavement leave boosts employee morale, increases employee retention, and promotes a productive workplace. It also enhances employees’ loyalty to their employer because it shows the employer’s empathy and compassion during a time of need. Employers play a meaningful role in their employees’ lives, and one way to make a positive impact is through an expanded bereavement policy.
As for best practices, the FBLA allows Illinois employers to request reasonable documentation from the employee who’s seeking leave. However, for leave resulting from miscarriage, stillbirth, or other pregnancy, or reproductive-related loss, the employer cannot ask which category specifically the leave is for. For reference, the Illinois Department of Labor will be publishing a model form for employers to use as a guide in requesting such documentation from employees.
The Labor and Employment team wishes to gratefully acknowledge the significant contribution of Emily Prager, a summer associate.
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