2023 FBLA Law Updates

Attention Illinois Employers:

What is FBLA?

FBLA is the Family Bereavement Leave Act.

Effective January 1, 2023, the Child Bereavement Leave Act' was broadened to include additional family members and reasons for leave. Illinois employers should update their leave policies in consideration of the bereavement law that went into effect on January 1, 2023.

Who is considered a covered employer?

An organization that consists of 50 or more employees during 20 or more workweeks in the current or previous calendar year. Covered Employers are required to provide up to 10 workdays of unpaid leave to eligible employees who are absent due to any of the following:

• A miscarriage
• An unsuccessful intrauterine insemination or assisted reproductive technology procedure
• A failed adoption
• An adoption match that is not finalized because it was not contested
• A failed surrogacy agreement
• A diagnosis that negatively impacts pregnancy or fertility
• A stillbirth

The FBLA also includes non-childbirth-related reasons. Other examples employers are required to acknowledge as part of this act:

• Employees attending the funeral of, grieving the death of, or making arrangements due to the death of a “covered family member”.

Under FBLA a covered family member can include:

• Children
• Stepchildren
• Spouses
• Domestic partners
• Siblings
• Parents
• Parents-in-law
• Grandchildren
• Grandparents
• Stepparents

Domestic Partner as defined by the Illinois General Assembly is:

In respect to a non-married employee:

• 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
• An unmarried adult person who is in a committed, personal relationship with the employee, who is not a domestic partner as described above
  • 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.

An employer may require the employee to provide documentation supporting the leave request, but in the instance of a pregnancy-or adoption-related event, the employer cannot require that the employee identify which category of leave they are requesting to take under the FBLA.

Examples of documentation:

An employer may, but is not required to, require reasonable documentation.

In the case of death:

• Death certificate
• Published obituary
• Written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

Childbirth-related reasons:

• A form provided by the Illinois Department of Labor is to be filled out by a health care practitioner that will verify the leave without identifying a specific statutory category. The healthcare provider must have treated the employee or the employee’s spouse or domestic partner, surrogate, for an event listed above.
• Or documentation from the adoption or surrogacy organization that the employee worked with related to an event listed above certifying that the employee or his or her spouse or domestic partner has experienced an event listed above.

Who is considered an eligible employee:

• Those who have been employed by the employer for at least one year
• An individual who has worked at least 1,250 hours for the employer during the prior 12-month period
• They have worked at a worksite with at least 50 employees within a 75-mile radius

Notice:

Employees must provide 48 hours advance notice when the employee intends to take bereavement leave unless such notice is not reasonable or practicable. The employee must complete his or her bereavement leave within sixty days after the date on which the employee receives notice of the death of the covered family member or the occurrence of a pregnancy-related or adoption-related event. In the event of more than one death of a family member in a 12-month period, the employee may take up to a total of six weeks of unpaid bereavement leave within the 12-month period.

Note:

FBLA does not create the right to take unpaid leave exceeding or in addition to the leave time permitted by the Family Medical Leave Act (FMLA).

Is Illinois the only state with Bereavement laws?

No, but because it is not a federal law, each state is allowed to create its own policies. At this point in time, Illinois has one of the more mature policies but with the developments in Illinois, it is likely other states will consider adopting similar policies. Other recent changes in state bereavement or family leave laws include:

New York:

2023 updates:

• Eligible workers can now take paid leave to care for siblings with serious health conditions. The amendment includes biological siblings, adopted siblings, stepsiblings, and half-siblings. These family members can live outside of the state of New York or even outside the United States.
• Up to 12 weeks of job-paid time off to bond with a new child, care for a family member with a serious health condition or assist loved ones when a family member is deployed abroad on active military service.
  • In New York leave can be taken all at once or in increments of full days.

California:

Many California employers already provide some form of bereavement leave to employees as a benefit, and some California cities and counties enforce local bereavement laws, but bereavement leave is defined and protected for all covered employees across the state beginning in January 2023.

Under the new law:

• A family member is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.
• Employees are not required to take bereavement leave on consecutive days.
• The leave is unpaid unless the employer already has a paid policy in place.
• Employees must complete their leave within three months of a family members death.
• Employers may request documentation of the death of the family member, such as a death certificate, or published obituary.

Employers must respect the confidentiality of the employee who requests leave.

Key takeaways:

Employers should review their policies and practices for compliance with their state laws. While Illinois, California and New York have strong policies in place, other states across the country may begin introducing legislation that expands family-related leave to cover new circumstances.

If you have questions about your specific state or business, please reach out to your RBN team to discuss.