Amendments Cover Pregnancy or Adoption-Related Losses, Deaths of Additional Family Members
On June 9, 2022, Illinois Gov. J.B. Pritzker signed into law amendments to the Child Bereavement Leave Act, which take effect January 1, 2023. Among other notable changes, the amendments change the name of the Child Bereavement Leave Act to the Family Bereavement Leave Act, expand the definition of “covered family member,” and expand unpaid bereavement leave time requirements for eligible employees to cover pregnancy loss, failed adoptions, unsuccessful reproductive procedures, and other diagnoses or events impacting fertility and pregnancy.
The definition of a covered “employer” and “employee” remain the same. Accordingly, covered employers remain those with 50 or more employees and, thus, are subject to the provisions of the Family and Medical Leave Act (FMLA). Covered employees remain those who have been employed by a covered employer for at least 12 months, have worked for a covered employer for at least 1,250 hours, and work at a location where the covered employer employs 50 or more employees within 75 miles.
Under the act, covered employers must provide covered employees with at least two weeks (10 working days) of unpaid bereavement leave to be absent from work to:
- Attend the funeral or alternative to a funeral of a covered family member;
- Make arrangements necessitated by the death of a covered family member; and
- Grieve the death of a covered family member.
The act now defines a “covered family member” to be an employee’s “child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.” A “domestic partner” means “(1) the person recognized as the domestic partner of the employee under any domestic partnership or civil union law of a state or political subdivision of a state; or (2) an unmarried adult person who is in a committed, personal relationship with the employee, who is not domestic partner as described in paragraph (1) to or in such a relationship with any other person, and who is designated to the employee's employer by such employee as that employee's domestic partner.”
Covered employers also must now provide covered employees with at least two weeks (10 working days) of unpaid bereavement leave to be absent from work due to:
- unsuccessful rounds of intrauterine insemination or of assisted reproductive technology procedures (defined as “a method of achieving a pregnancy through an artificial insemination or an embryo transfer and includes gamete and embryo donation,” but “not pregnancy achieved through sexual intercourse”);
- failed adoption matches;
- adoptions not finalized due to being contested by another party;
- failed surrogacy agreements;
- diagnoses that negatively impact pregnancy or fertility; and
The unpaid bereavement leave must occur within 60 days of the death of the covered family member or the date on which the leave related to a pregnancy loss, failed adoption, unsuccessful reproductive procedure, or other diagnosis or event impacting fertility and pregnancy occurs.
Under the act, covered employers may, but are not required to, request “reasonable documentation” from covered employees seeking bereavement leave for events listed above related to pregnancy loss, failed adoptions, unsuccessful reproductive procedures, and other diagnoses or events impacting fertility and pregnancy. The act directs that “reasonable documentation” for those purposes shall include a form, to be provided by the Illinois Department of Labor, to be filled out by a health care provider who has treated the employee or the employee’s spouse or domestic partner, or surrogate, for an unsuccessful pregnancy or adoption; or documentation from the adoption or surrogacy organization with whom the employee worked. If requested, the documentation must certify that the employee or his or her spouse or domestic partner has experienced an event relating to a pregnancy loss, failed adoption, unsuccessful reproductive procedure, or other diagnosis or event impacting fertility and pregnancy. Importantly, the act instructs that an employer may not require that the covered employee identify which category of event the unpaid bereavement leave pertains to as a condition of exercising rights under the act.
Finally, the act does not permit a covered employee from taking unpaid leave that exceeds the leave time permitted under the FMLA, or is in addition to the unpaid leave permitted under the FMLA.
For questions about how this affects you or your business, please contact a member of our Employment & Labor Practice Group.