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The loss of a loved one is an extremely difficult time for anyone. The grieving period can be further complicated when trying to determine the amount of bereavement leave, or lack thereof, the law provides.
Federal Law Does not Provide Coverage for Bereavement
Under federal law, The Family and Medical Leave Act (“FMLA”) gives employees who are eligible unpaid time off work to care for a family member with a serious health condition. However, bereavement is not allotted for under the FMLA. Therefore, one must turn to state or the individual's employer's policy to determine the amount of bereavement leave, if any.
State Laws
There are few states that require prior employers to provide bereavement leave. Rather, employers are often left to afford bereavement leave, if any, through their company policies.
However, Illinois is one of the few states which has a bereavement leave law. [1] Illinois recently enacted an amended bereavement leave law which became effective on January 1, 2023 and provides significant coverage for employees. The new law is called the Family Bereavement Leave Act (“FBLA”) which supersedes Illinois’ prior version that only allowed unpaid bereavement leave when an employee’s child died. The FBLA now provides 10 days of unpaid bereavement leave not only for death of an employee’s child but expands the coverage to other family members. The new FBLA also expands leave coverage for certain medical and adoption events. The FBLA is detailed as follows:
Under the FBLA, bereavement leave coverage now extends to an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.
Under the FBLA, the bereavement events for a covered family member are:
- attend a funeral or other related service, ritual, or event;
- make arrangements necessitated by the death of the covered family member; or
- grieve the death of the covered family member.
Under the FBLA, the medical and adoption events entitling an employee to bereavement leave are:
- a miscarriage;
- an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure;
- a failed adoption match or an adoption that is not finalized because it is contested by another party;
- a failed surrogacy agreement;
- a diagnosis that negatively impacts pregnancy or fertility;
- a stillbirth.
The FBLA applies to the same employers and employees that are covered by the FMLA. For employers, this means that employers who have 50 or more employees and it also applies to public agencies. For employees, the FBLA applies to those who have worked at least twelve months of employment or at least 1,250 hours worked within the previous twelve-month period.
Can the FBLA and FMLA be Taken Together?
No. The FMLA provides for leave while caring for a loved one while they are still alive, whereas the FBLA applies in Illinois when a covered family member has passed away. There may be a scenario where one can take either the FBLA or FMLA in dealing with serious health conditions where the employee is unable to work, such as a miscarriage or stillbirth. In this scenario, the FBLA outlines the employee may elect to choose the 10 days of unpaid leave under the FBLA. If the employee elects to use FMLA allotted time, the FBLA does not create a right to take additional leave.
Notice Period
Under the FBLA, an employer may request reasonable documentation to certify that employee qualifies for bereavement leave. Due to medical privacy rights, however, the employer cannot require the employee to identify which specific event occurred to take bereavement leave. The Illinois Department of Labor (“IDOL”) provides a form that employers may ask their employees to fill out to certify bereavement leave under the FBLA. The IDOL form can be accessed here.
Next Steps
As the FBLA supersedes previous laws and applies to many employers in Illinois, it is necessary for employers to make these changes to their employee handbooks and policies and be aware of bereavement leave required under the FBLA. Employment attorneys at Segal McCambridge have widespread experience in employment law matters across several states and are happy to assist you with your company’s plan regarding bereavement laws, or any employment matters. Should you need any further information, please do not hesitate to contact us.
[1] As of January 1, 2023, the following states have bereavement laws for private employees: Oregon, Maryland, and California. Several states have bereavement laws for state employees only. Those states include Michigan. Ohio, and Texas. Please consult your local state laws for their current version of a bereavement law, if any.
- a failed adoption match or an adoption that is not finalized because it is contested by another party;
- a failed surrogacy agreement;
- a diagnosis that negatively impacts pregnancy or fertility;
- a stillbirth.
The FBLA applies to the same employers and employees that are covered by the FMLA. For employers, this means that employers who have 50 or more employees and it also applies to public agencies. For employees, the FBLA applies to those who have worked at least twelve months of employment or at least 1,250 hours worked within the previous twelve-month period.
Can the FBLA and FMLA be Taken Together?
No. The FMLA provides for leave while caring for a loved one while they are still alive, whereas the FBLA applies in Illinois when a covered family member has passed away. There may be a scenario where one can take either the FBLA or FMLA in dealing with serious health conditions where the employee is unable to work, such as a miscarriage or stillbirth. In this scenario, the FBLA outlines the employee may elect to choose the 10 days of unpaid leave under the FBLA. If the employee elects to use FMLA allotted time, the FBLA does not create a right to take additional leave.
Notice Period
Under the FBLA, an employer may request reasonable documentation to certify that employee qualifies for bereavement leave. Due to medical privacy rights, however, the employer cannot require the employee to identify which specific event occurred to take bereavement leave. The Illinois Department of Labor (“IDOL”) provides a form that employers may ask their employees to fill out to certify bereavement leave under the FBLA. The IDOL form can be accessed here.
Next Steps
As the FBLA supersedes previous laws and applies to many employers in Illinois, it is necessary for employers to make these changes to their employee handbooks and policies and be aware of bereavement leave required under the FBLA. Employment attorneys at Segal McCambridge have widespread experience in employment law matters across several states and are happy to assist you with your company’s plan regarding bereavement laws, or any employment matters. Should you need any further information, please do not hesitate to contact us.
