Expanded FMLA Coverage: New Law Affording Extended Bereavement Leave for Employees

July 15, 2022

On June 9, 2022, Governor J.B. Pritzker signed into law amendments to the Illinois Child Bereavement Leave Act.  Starting January 1, 2023, the amendment will expand employee coverage, rename the Act and stipulate certain supporting documentation guidelines for bereavement leave requests.

Expanded Coverage

The amendment to the Act extends unpaid bereavement leave for employees experiencing pregnancy loss, ineffective fertility treatment, a diagnosis affecting fertility, as well as unsuccessful adoption or surrogacy plans. More specifically, employers must now provide unpaid leave for several circumstances surrounding loss of a child including a miscarriage, an unsuccessful reproductive assistance procedure, a failed adoption match or contested adoption, a failed surrogacy arrangement, diagnoses negatively affecting pregnancy, and birth to a stillborn child.

This expanded coverage applies only to Illinois employers who are subject to the federal Family and Medical Leave Act (FMLA) which does not include those with less than fifty employees in a 75-mile radius. Under FMLA, covered employers are currently required to provide employees 10 workdays of unpaid leave to allow for circumstances relating to attending a funeral of a child, planning arrangements related to the death of a child, or mourning the death of a child. The new amendment expands covered family members and allows leave to include bereavement of a spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. This is an extension of coverage from including only an employee’s child, stepchild, foster child, or legal ward.

Renaming the Act and New Definitions

In addition to expanding coverage, the amendment also changes the law’s title from the Illinois Child Bereavement Leave Act to the Family Bereavement Leave Act, a more inclusive title to reflect the expansion of coverage the Act will soon provide. In addition to the name change, other important terms have been defined. First, a “domestic partner” is broadly defined as an employee’s partnership under either civil union law or partnership through a personal relationship without a formal legal designation. Additionally, the Amendment to the Act adds the term “assisted reproduction” which includes pursuing a pregnancy through artificial insemination, embryo transfer, and gamete and embryo donation.

Supporting Documentation

The amendment also states that employers are no longer required to ask employees for supporting documentation regarding bereavement leave requests. However, employers have the option of requesting reasonable documentation validating the need for leave related to both bereavement as well as loss associated with circumstances surrounding family planning. Employers are not permitted, however, to require that employees identify which category of event relates to the leave. Reasonable documentation may include forms completed by health care providers or documents related to adoption or surrogacy. The Illinois Department of Labor will provide health care practitioner forms that can be accessed online.

Steps for Illinois Employers to Take Now

These new changes and modifications will not take effect until January 1, 2023 and are in addition to those already posed by the FLMA for covered employers. Prior to then, employers can take necessary steps to ensure timely compliance with new guidelines. Covered employers can review and update bereavement leave policies to ensure that the new qualifying reasons for leave under the Act are listed. Additionally, covered employers should review and update employee handbooks, informing employees of their rights and responsibilities under the amended Act.

If you have questions or concerns regarding implementation of these new amendments to the Illinois Child Bereavement Act, please contact the attorneys at Rock Fusco & Connelly.