Illinois Expands Unpaid Leave to Employees for Pregnancy and Adoption Loss

On June 9, 2022, Governor JB Pritzker signed the Family Bereavement Leave Act (SB3120) into law, expanding unpaid bereavement leave available to employees in Illinois.

The Family Bereavement Leave Act – an amendment to the Child Bereavement Leave Act – requires employers with at least 50 employees to provide up to 10 days of unpaid leave to employees who are absent due to:

(1) A miscarriage;

(2) An unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure (e.g., artificial insemination or embryo transfer);

(3) A failed adoption match or an adoption that is not finalized because it is contested by another party;

(4) A diagnosis that negatively impacts pregnancy or fertility; or

(5) A stillbirth.

Like the Family and Medical Leave Act of 1993 (FMLA),1 employees become eligible for unpaid bereavement leave under the Family Bereavement Leave Act after 12 months of employment and at least 1,250 hours worked within the previous 12-month period. It also permits, but does not require, employers to request reasonable documentation in response to an employee’s request for unpaid bereavement leave. However, the employer is prohibited from requiring the employee to specifically identify whether the leave pertains to a miscarriage, a failed adoption or any other category of event set forth in the Act, even if the employer requires the employee to provide documentation. In such a case, employers should anticipate receiving a form from the employee’s health care practitioner – provided by the Illinois Department of Labor – that will verify the leave-inciting event without identifying the specific statutory category. Notably, the Act does not create an employee right to take unpaid leave that exceeds the leave time permitted under the FMLA.

The passage of the Family Bereavement Leave Act comes as other states across the country have introduced legislation that would provide both paid and unpaid leave to employees following miscarriages, stillbirths, and infertility issues. In January, for example, the Utah State Senate considered A Bereavement Leave Amendments Bill,2 which would provide paid bereavement leave for state and local government employees who suffer a miscarriage or stillbirth. Similar legislation for paid bereavement leave following miscarriages and stillbirths was introduced in 2021 in New York3 and Kentucky.4 Currently, there is no federal entitlement providing for paid sick or bereavement leave after pregnancy loss.

Illinois employers should begin reviewing their bereavement leave policies to determine whether changes are required in order to comply with the state’s new Family Bereavement Leave Act.

See Footnotes

1 29 U.S.C 2601 et seq.

2 Senate Bill 63 (S.B. 63).

3 Assembly Bill A5231A.

4 House Bill 284.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.