The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," runs in the Champaign News Gazette.
I heard there’s a new law that gives “bereavement leave” in case of a family death. Who’s eligible for this leave, and how much leave does it provide?
The Illinois Child Bereavement Leave Act (CBLA) went into effect July 29, 2016. It gives parents up to 10 work days of unpaid leave when a child dies.
The new law is based on the federal Family Medical Leave Act (FMLA). The same employers and employees covered by the federal law are covered by the new state law.
“Covered employers” have at least 50 employees. All public agencies and public schools are also covered employers. An employer covered by the FMLA must post a notice saying so.
Not everyone who works for a covered employer is a “covered employee.” A covered employee, must have worked for a covered employer for a total of 12 months, and have worked there at least 1,250 hours in the previous 12 months (about 24 hours per week). They must also work within 75 miles of at least 49 other employees.
If you’re a covered employee at a covered employer, the FMLA gives you 12 weeks of unpaid leave in a 12 month period to care for your own serious health condition, or to care for a seriously ill child, spouse, or parent. Parents can also use the FMLA to spend time with a newly born or adopted child.
And, since 2009, the FMLA can also be used when a family member is called to active duty in the National Guard, or to care for a family member injured in active military service (up to 26 weeks).
The FMLA does not, however, permit bereavement leave. It only permits leave to care for your own or a family member’s serious health condition. If the family member dies, the FMLA no longer applies. (Grieving can be your own serious health condition, but it’s not automatic.)
That’s where the CBLA comes in—but only when a child dies. It guarantees 2 weeks (10 work days) of unpaid leave when a covered employee’s child dies. Because this bereavement leave isn’t possible under the FMLA, it doesn’t use up any FMLA leave time.
However, the CBLA says you can’t take leave “in addition to the unpaid leave time permitted by” the FMLA. You can’t, then, take CBLA leave once your FMLA leave is all used up. Between the different laws, the 12 weeks (60 work days) of unpaid leave allowed under FMLA is all you get.
So, if someone hadn’t taken any FMLA leave, and takes 2 weeks of bereavement leave under Illinois law, they’re still entitled to 12 weeks of FMLA leave.
But, someone who’d already taken 11 weeks of FMLA time can only take 1 week of CBLA leave. That would exhaust the 12 week limit of total unpaid leave the state law imposes. After taking the 1 week of CBLA leave, you’d still have 1 more week of FMLA leave.
Finally, if a second child dies within 12 months, parents are entitled to a total of 6 weeks of leave within that 12 months.