In Illinois, various federal and state laws provide employees with the right to take certain protected leaves of absences from work. Illinois does not have its own Family and Medical Leave Act. Illinois employers, however, must comply with the federal Family and Medical Leave Act, as well as other forms of leave permitted by Illinois law. Employers that have employees working in the city of Chicago or in certain municipalities located in Cook County may have additional paid sick leave requirements as well. In general, the federal statute, the Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave in any of the following situations:
This chapter provides an overview of the general framework of each statute of the FMLA.
A private employer is covered under the FMLA if it employs 50 or more employees each working day for 20 or more full (not necessarily consecutive), calendar workweeks in the current or preceding calendar year. Once a private employer satisfies these thresholds, the employer remains covered until it no longer employs at least 50 employees during 20 non-consecutive workweeks in both the current and preceding calendar years. The definition for “employee” under the FMLA is relatively broad and includes:
All public employers and educational agencies are covered under the FMLA, regardless of whether they meet the private employer threshold requirements.
For an employee to be entitled to FMLA leave, the employee must have:
These eligibility requirements are calculated as of the date the employee commences leave, and not from the date the employee requests leave. The employee must also be employed at a location where the employer employs at least 50 employees within a 75‑mile radius of the job site where the employee requesting leave is employed. These requirements are calculated from the date the employee requests leave.
An employee need not specifically request protection under the FMLA. Rather, the employee must only provide notice and a qualifying reason for requesting leave to the covered employer. A covered employer must provide an eligible employee with up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:
Effective March 27, 2015, The Department of Labor amended its definition of “spouse” in the FMLA regulations to include eligible employees in legal same-sex marriages, regardless of where they live. The DOL adopted a “place of celebration” rule, which allows all legally married couples, whether opposite-sex, same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live. Employers should review their policies to confirm compliance with this new definition. Updates and additional information regarding the FMLA’s definition of “spouse” may be found on the Department of Labor’s website. See:
A “serious injury or illness” is one that may render the service member medically unfit to perform duties and for which he or she is undergoing treatment, therapy, recuperation, or otherwise on the military’s temporary disability retired list.
Under the Illinois Family Military Leave Act, companies who between 15 and 50 workers must provide spouses and parents of soldiers up to 15 days of unpaid leave; employers with more than 50 employees need to offer 30 days of leave. There are numerous restrictions under the Illinois Family Military Leave Act. They include the following:
A qualifying exigency may include:
If spouses work for the same employer, the FMLA entitles them to an aggregate of 12 weeks of leave per 12-month period for birth, adoption, foster care, or to care for a sick parent. Each spouse, however, is entitled to the remainder of his or her 12-week entitlement for any other qualifying leave. The employer must provide requested leave under any of the following circumstances:
The Illinois Family Military Leave Act requires employers with 15 or more employees to provide unpaid leave to any employee who is the parent or spouse of an individual called to military service lasting more than 30 days. Employers with 15-50 employees must provide up to 15 days of leave and employers of more than 50 employees must provide up to 30 days of leave.
In order to qualify, an employee must have worked for the company for at least 12 months and for a total of at least 1,250 hours over the previous year. Employees must give at least 14 days’ notice if the leave is going to last for more than five days. However, employees do not become eligible for Family Military Leave until they have depleted all vacation time and other types of leave, except for sick leave and disability leave. In Illinois, employees who are victims of domestic violence may also be entitled to leave.
Employees are entitled to 12 weeks of FMLA leave during any 12-month period. The 12-month period may be calculated in any of the following ways:
Most employers prefer the rolling method or the counting forward method because such methods prevent an employee from joining multiple leave periods together by taking 12 weeks of leave at the end of a calendar year and then 12 weeks of leave at the beginning of the next calendar year for a total of 24 consecutive weeks.
The employer must designate which method it wishes to use to calculate the 12-month leave periods and apply the method uniformly and consistently. If the employer fails to select a method and notify the employees of which method applies, the method most beneficial to the employee will apply. If an employer changes methods, it must notify employees at least 60 days in advance of implementing and enforcing such change.
The FMLA defines “intermittent leave” as leave taken in separate blocks of time due to a single qualifying condition. A “reduced leave schedule” is a change from full-time to part-time employment. An employee is entitled to take intermittent FMLA leave or reduced leave where it is “medically necessary” to care for a serious health condition of the employee or the employee’s immediate family member. An employee may also take intermittent or reduced schedule leave for a service member’s illness or injury if there is a medical need for leave that is best accommodated through intermittent leave. With respect to intermittent FMLA leave or reduced leave related to the adoption or birth of a child, however, an employee may take such leave only with the employer’s consent.
If an employee has made a request for intermittent leave or a reduced leave schedule, an employer is entitled to temporarily transfer employees to an “alternative position” for the duration of the intermittent or reduced leave, provided that the employee both:
Benefits may be reduced proportionate to the number of hours worked only if such reduction is normal practice.
The FMLA defines the term “serious health condition” as an illness, impairment, or physical or mental condition involving at least one of the following situations:
Several types of illnesses or injuries are specifically excluded from the definition of serious health condition in the regulations. Some examples include the following:
The FMLA defines “health care provider” as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices, or any other person determined by the Secretary of Labor to be capable of providing health care services. The regulations include in this definition podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray) who are authorized to practice in the state. Also included in the regulations are nurse practitioners, nurse mid-wives, clinical social workers, and physician assistants who are authorized to practice in the state and performing within the scope of their practices as defined under state law.
While the act does not require a covered employer to pay employees during FMLA leave, the employer must continue to provide eligible employees any employment benefit that they may have accrued prior to beginning FMLA leave.
If benefits are added or changed during the leave, the employee is also entitled to those modifications. The key here is that the employee maintains the benefits under the same conditions as those existing before the leave.
Although a covered employer’s FMLA obligations end when the employment relationship ends, the employer may still have obligations to maintain health benefits as required by the Consolidated Omnibus Budget Reconciliation Act (COBRA).
Employees also may not be excluded from perfect attendance bonuses, safety bonuses, or similar bonuses because they are on FMLA leave. Similarly, an employee on FMLA leave will remain entitled to any unconditional pay increases granted during the leave.
An employee, however, is not entitled to the accrual of any seniority or employment benefits during the period of leave.
Example - An employee’s bonus or pay increase is calculated based on work time or accrued earnings. The employee has not accrued such hours or earnings during the leave period. Therefore, an employer may pay the employee a lesser amount than other employees. However, any hours or earnings accrued at the time the leave began must be used toward calculating such bonuses or pay increases upon the employee’s return from FMLA leave.
Similarly, unpaid FMLA leave periods need not be treated as credited service for purposes of benefit accrual, vesting, or eligibility to participate in pension or other retirement plans.
Within a reasonable time after the employee is able to return from FMLA leave, the employer must restore the employee to his or her former job or to an “equivalent” position. An “equivalent” position is one that is virtually identical to the employee’s former position in terms of pay, benefits, working conditions, duties, skill, authority, privileges, and status. The position must be in the same or geographically similar worksite with an equivalent work schedule and shift.
If an employee is unable to perform an essential function of the position because of a physical or mental condition, the employee has no right to be restored to another position under the FMLA. In many circumstances, however, the Americans with Disabilities Act (ADA) may dictate further obligations for the employer.
A employee has no greater entitlement to reinstatement or, as previously discussed, other benefits and conditions of employment, than if the employee had been continuously employed during the leave period.
Example - The employee’s position was eliminated in a nondiscriminatory reduction in force. The employee is not entitled to reinstatement just because he or she was on leave when the position was eliminated. However, the employer has the burden to prove that the employee would have been terminated if the employee had not taken FMLA leave in order to deny restoration to employment.
If the employee informs the employer that he or she does not intend to return to work, or the employee fails to return after exhausting FMLA benefits, the employer’s FMLA obligations end.
One exception to the FMLA’s reinstatement requirement permits employers to exclude employees who are among the highest paid 10% of all employees (both salaried and non-salaried) in the employer’s workforce within 75 miles of the facility where the employee works, from reinstatement. This exception, referred to in the regulations as the “key employee” exception, permits an employer to refuse reinstatement if all of the following requirements are met:
Where an eligible employee plans to take foreseeable leave in the case of expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition, the employee must provide at least 30 days notice of the employee’s intention to take leave before leave is to begin. If the employee fails to give 30 days notice for a foreseeable leave with no reasonable excuse for the delay, the employer may deny the taking of leave until at least 30 days after the employee provides notice, provided that the employee had actual notice of FMLA notice requirements.
If the employee intends to take leave in less than 30 days or otherwise changes the start date, the employee must provide notice “as soon as practicable,” which ordinarily may be satisfied by at least verbal notification to the employer, within one or two business days of when the need for leave becomes known to the employee. If an employee takes leave for planned medical treatment, the employee must make a reasonable effort to schedule the treatment in a manner that will not unduly disrupt the employer’s operations, subject to approval by a health care provider.
Where the employee takes unforeseeable leave, the employee must provide such notice as is practicable, or within two or three working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.
The employee need not specifically assert rights under the FMLA or even mention the FMLA, but may provide adequate notice by only stating that leave is needed for a potentially FMLA-qualifying reason. As soon as the employee informs the employer that an absence may potentially qualify under the FMLA, the employer has the burden to determine whether the leave is actually for an FMLA-qualifying reason. The employer may request medical certification to determine if the reason for the leave qualifies as a serious health condition.
An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. However, if a collective bargaining agreement, state law, or an employer’s leave plan provides for lesser notice requirements, an employer cannot require compliance with the stricter FMLA requirements.
One of the most significant changes under the new FMLA regulations is the “notice requirements” an employer owes to its employees. In an effort to clarify an employer’s obligations, the regulations have divided the notice requirements into four separate categories.
The eligibility notice is a notice that employers must give employees who request leave, informing them whether they meet the eligibility requirements of the FMLA. However, the notice does not inform the employee whether or not the reason for leave has been approved.
The rights and responsibilities notice is a notice that provides employees who need FMLA leave with general information about their rights and responsibilities under the FMLA. An employee must be given a rights and responsibilities notice each time an eligibility notice is given. A rights and responsibilities notice must include all of the following information:
The designation notice is a notice that the employer must give employees who have requested or need FMLA leave informing them whether that leave has been approved and will be counted as FMLA leave.
The FMLA imposes strict record‑keeping requirements. Covered employers must make, keep, and preserve records pertaining to their obligations under the FMLA in accordance with section 11(c) of the Fair Labor Standards Act (FLSA) and FMLA regulations. Employers must keep records for at least three years and make them available for inspection, copying, and transcription by the Department of Labor upon request. Employers must maintain records of the following information:
Note: Information relating to medical certifications, re-certifications, or medical histories of employees or family members (created for the purpose of FMLA leave) must be maintained as confidential medical records in separate files from the usual personnel files.
When an employee submits a request for FMLA leave related to a serious health condition, an employer may require the employee to submit a medical certification form, signed by a health care provider, indicating that the employee (or the employee’s family member) does in fact suffer from a serious health condition. Normally, an employer should make the request for written certification within two days of receiving notice of leave from the employee and can provide the employee with 15 days to respond to the request by certification, or as soon as reasonably possible due to the circumstances.
Once the employee has submitted a complete and sufficient medical certification, the employer cannot request additional information from the health care provider. However, the employer’s human resources department or leave administrator (not the employee’s supervisor) may contact the health care provider after the employee has been given the opportunity to cure any deficiencies in order to authenticate or clarify certification. If the employer has reason to doubt the validity of the certification, then it may require the employee to obtain a second or third opinion from another health care provider at the employer’s expense, provided that the health care provider is not employed by the employer on a regular basis. Upon request, employers must provide an employee with copies of second and third opinions within five business days.
Certification is generally sufficient if it states the date on which the serious health condition commenced, the probable duration of the condition, the appropriate medical facts within the knowledge of the health care provider regarding the condition, and a statement that the employee is unable to perform the functions of the employee’s position.
Employers may also require employees to submit a timely, complete, and sufficient certification to support a request for FMLA leave due to a qualifying exigency or for military caregiver leave due to a serious illness or injury. Sample forms are provided on the Department of Labor’s website:
The statute and regulations governing family and medical leave are enforced by the Wage and Hour Division of the United States Department of Labor’s Employment Standards Administration. Most violations of the FMLA are the result of employer confusion in interpreting and implementing the act, as opposed to willful violations. Common violations committed by employers include the following:
An eligible employee may file a private civil action against an employer in state or federal court for FMLA violations. An employee must file such lawsuit within two years of the date of the alleged violation for ordinary damages, or within three years for willful violations. Unlike other civil rights statutes, an employee enforcing his or her rights under the FMLA is not required to file a complaint with the Wage and Hour Division prior to filing a civil lawsuit, although such an employee is entitled to do so.
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Family and medical leave — Illinois
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Appendix A: Recordkeeping requirements
Appendix B: Posting requirements