To date, Illinois joins Oregon as the only states to have codified specific bereavement leave entitlements for employees, although such circumstances may be covered more generally under other paid family leave requirements.
Illinois employers face another wave of employee-friendly state laws and local ordinances that they must take action on now and plan for in 2023.
Expansion of Bereavement Leave Requirements
On June 9, 2022, Governor J.B. Pritzker signed Senate Bill 3120 into law, which will rename and expand the former Child Bereavement Leave Act into the Family Bereavement Leave Act (FBLA), effective January 1, 2023. Under the new FBLA, Illinois employers will be required to provide unpaid bereavement leave to employees under a much broader set of circumstances than under the current Child Bereavement Act, which currently provides unpaid leave only for an employee’s loss of a child. The amendment does not change the amount of protected bereavement leave provided, nor the Illinois employers covered under the requirements.
Under the new FBLA, Illinois employers that are covered by the Family and Medical Leave Act, which generally includes those with 50 or more employees within 75 miles, must provide employees up to two weeks (10 work days) of unpaid bereavement time off from work, up to a maximum of six weeks per 12-month period. The amendment expands the reasons for protected bereavement leave to include the employee’s loss of a covered family member. The new FBLA definition of a “covered family member” includes an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent. “Child” continues to include biological, adopted, foster or step- relationships, or a legal ward or other child of a person standing in the position of a parent.
Reasons for protected bereavement leave related to the death of a covered family member continue to include: (1) attending the funeral or alternative to a funeral; (2) making arrangements necessitated by the death; or (3) grieving the death. Under the FBLA, an employee’s loss related to pregnancy, adoption, surrogacy or fertility treatment will be recognized as a newly added fourth set of reasons for an employee’s protected bereavement leave. Employees may take protected leave due to the employee’s: miscarriage; unsuccessful assisted reproductive procedure; failed or nonfinalized adoption; failed surrogacy agreement; diagnosis negatively impacting a pregnancy or fertility; or stillbirth.
An employer may require reasonable documentation for the leave under the act and advance notice of the need for leave, and may require the leave to take place within no more than 60 days after an employee receives notice of the death or covered event. However, employers may not require an employee to identify the specific event for any requested leave under the fourth set of reasons above. For such circumstances, the Illinois Department of Labor will make forms available to healthcare practitioners to serve as appropriate documentation.
Bereavement leave is not currently required by federal law. To date, Illinois joins Oregon as the only states to have codified specific bereavement leave entitlements for employees, although such circumstances may be covered more generally under other paid family leave requirements.
Covered Illinois employers should review their current bereavement leave policies carefully to ensure compliance with the FBLA, particularly to ensure inclusion of expanded covered family members and childbirth, adoption or fertility-related circumstances.
Strengthening of Meal Break and Rest Day Requirements
The Illinois One Day Rest In Seven Act (ODRISA) has long required employers to provide employees with a minimum rest period of at least 24 hours during each work week, and with meal breaks of at least 20 minutes during every shift of 7.5 hours or longer. On May 13, 2022, Governor Pritzker signed into law Senate Bill 3146, an amendment to ODRISA expanding the meal break requirement, clarifying the rest period requirement and significantly increasing the penalties associated with an employer’s violation of the act. The amendment takes effect January 1, 2023.
Under the amendment, employers will be required to provide nonexempt employees with the minimum rest period during every consecutive seven-day period, rather than during a “calendar week.” The changes are intended to prevent employers from being able to schedule an employee in any two-week calendar period consecutively from Monday of the first week through Friday of the second week without violating the current ODRISA requirements.
Employers also will have additional meal break requirements under the amendment. Employees who work more than 7.5 continuous hours will be entitled to an additional 20-minute meal period for every additional 4.5 continuous hours worked. The amendment also clarifies that an employee’s 20-minute meal break should not include reasonable time using the rest room. Employees working 12-hour shifts now will be entitled to two 20-minute meal breaks, with those working shifts of 16.5 hours entitled to three 20-minute meal breaks, etc.
The current penalty under ODRISA is a petty offense fine of $25-$100. The amendment will make violations civil offenses, which are subject to civil fines of up to $250 per offense for small employers (fewer than 25 employees) and up to $500 per offense for employers with 25 or more employees, payable to the Illinois Department of Labor. An equal amount (up to $250 or $500 per offense) will be available to each affected employee as damages. Each day or each week in which an employee has not been provided the required meal break or day of rest will be a separate offense. Finally, the amendment includes a new notice-posting requirement for physical workplaces and by electronic delivery to remote employees.
Illinois employers should review their work scheduling protocols and their meal break policies to ensure compliance with the new ODRISA requirements.
Additional Sexual Harassment Prevention Requirements for Chicago Employers
Beginning July 1, 2022, Chicago employers face new policy, posting and training requirements for prevention of sexual harassment in the workplace. The changes come from amendments to the Chicago Human Rights Ordinance (CHRO), which were passed by the Chicago City Council as part of Mayor Lori Lightfoot’s strategic plan to address gender-based violence and human trafficking.
Under the amendments to the CHRO, Chicago employers must:
- Have a written sexual harassment policy that prohibits sexual harassment and meets minimum requirements, including a definition of sexual harassment, examples of prohibited sexual harassment, requirement of annual training, details for an employee’s reporting of a complaint and resources available to victims, and is provided in the employee’s primary language within the first week of employment. Employers may adapt their existing sexual harassment policies to ensure compliance, or utilize a model policy provided by the Chicago Commission on Human Relations;
- Post an updated sexual harassment in the workplace prevention poster; and
- Provide additional employee training on an annual basis, with the first round completed no later than June 30, 2023, which shall include:
- One hour of sexual harassment prevention training for all employees. This training can be satisfied by the same program that all Illinois employers have been required to provide under the Illinois Human Rights Act since 2020.
- One additional hour of sexual harassment prevention training for all supervisors and managers (two hours total), the contents of which will be provided by the Chicago Commission on Human Relations in the near future; and
- One hour of bystander training for all employees, the contents of which also will be provided by the Chicago Commission on Human Relations in the near future.
The new amendments to the CHRO also expand the definition of sexual harassment to include “sexual misconduct,” which is defined as any behavior of a sexual nature that also involves coercion, abuse of authority or misuse of an individual’s employment decision. Finally, the changes to the CHRO increase the window for victims to file complaints of any type of discrimination, including sexual harassment, with the Chicago Commission on Human Relations from 300 days to 365 days, and provide for higher potential fines for an employer’s proven violation of the CHRO, of up to $5,000 to $10,000 per violation (from $500 to $1,000).
The CHRO applies to all individuals or entities who employ one or more employees engaged to work in the city of Chicago, and who are subject to a license requirement under city of Chicago ordinances, maintain a physical location within the city or both.
Chicago employers should ensure that the terms of their sexual harassment prevention policy, as well as their notice posting and distribution protocols, satisfy the new requirements beginning July 1, 2022. Chicago employers also should review their annual sexual harassment training programs for compliance with Illinois law and plan to implement the additional training hours and additional programming required for Chicago employees so that the first Chicago-specific programming is completed by June 30, 2023.
What This Means for Employers
Given the new requirements from these amendments, Illinois and Chicago employers are encouraged to consult with counsel to address updated requirements for bereavement leave policies, meal break and rest day requirements and sexual harassment prevention policies, protocols and training.
For More Information
If you have any questions about this Alert, please contact Daniel O. Canales, Jennifer Long, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.