Illinois Family Neonatal Intensive Care Act - Legislative Guidance

Overview

Employers with at least 16 employees must offer unpaid job-protected leave on an intermittent or consecutive basis when any child of the employee is in the Neonatal Intensive Care Unit (NICU). Entitlement varies based on the size of the employer.

AbsenceSoft Policies

Illinois Family Neonatal Intensive Care Act is configured in AbsenceSoft with the policy code and naming below:

Illinois Family Neonatal Intensive Care Leave IL-NICU

Legislation codes and statues

The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document:

Illinois Complied Statutes Chapter 820, section 157 (820 Ill. Comp. Stat. § 157)

Employer Coverage

Employers with at least 16 employees must provide leave.

Employee Eligibility

An employee must have an eligible child placed in NICU care.

Exceptions:

Independent contractors

Qualifying Absence Reasons and Leave Duration

Depending on the size of the employer leave will be offered on a per event entitlement, so long as the employee’s applicable child is in NICU care:

16-50 employees up to 10 workdays
51+ employees up to 20 workdays

Note: The law does not indicate how to measure the employee count.

Family Leave

Adoption/Foster Care: May be applicable immediately at placement or occur at sometime after placement.
Bonding: May be applicable during a period the birth parent delivers a child that is immediately placed in NICU care, or placed in NICU shortly after bonding begins.
Family Health Condition: May be applicable during a period the birth parent delivers a child that is immediately placed in NICU care, or following bonding, or interruption to bonding with a newborn or newly placed child.

Medical Care

Pregnancy/Maternity: May be applicable during a period the birth parent delivers a child that is immediately placed in NICU care.

Qualifying Family Member

Child - biological, adopted, foster, stepchild, legal ward, in loco parentis

How Leave Can be Taken

Employees may take leave consecutively, intermittently, or reduced schedule for any qualifying reason. Reduced schedule is not explicitly called out in the law, however, interpretation is reduced schedule would be allowable.

Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.
Intermittent leave: Leave taken in separate, sometimes unpredictable, blocks of time (either hours, days or weeks) between the start and end dates of leave.
Reduced schedule: A reduction to the employees’ work schedule that results in either fewer hours per day or fewer days per week. A reduced schedule is consistent from one week to the next.

Note: Employers may limit increments of time to 2 hours or greater for intermittent leave needs.
Employees elect how they wish to take leave, employers and employees do not have to agree nor does the employer get the right to choose how the employee make take their leave.

Certification Requirements

Employers can require verification of the child’s need and duration for NICU care. The law indicates this should be a reasonable verification, and does not outline when the documentation should be returned to the employer. Employers will want to consult internally on the best approach for their organization if requiring verification.

Pay and Benefits

Leave is unpaid. Where state pay benefits are involved with other law interactions, such as state mandated sick pay, employers will want to consider where PTO/employer pay benefit application should occur.

Use of Paid Time Off (PTO)

Employees are allowed to choose whether or not accrued employer benefits are used while on leave. Employers may not force or require an employee to use such benefits.

Job Protection

Employees should be returned to the same or equivalent position.

Other Protections

Employers cannot require the employee find a replacement worker while the employee is taking leave or as a condition of taking leave.

Benefits

Benefits should be maintained by the employer in the same manner as if the employee was not on leave.

Interaction with Other Laws

Where an employee meets the definition of family member, qualifying absence reason, or serious health condition, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.

Family and Medical Leave Act (FMLA)

FMLA does NOT run concurrently with ILNICU. The law explicitly states the ILNICU is in addition to the offering under FMLA or when FMLA may not apply/be ineligible.

Illinois Pregnancy Disability Leave

May run concurrently with ILNICU depending on the situation and accommodation.

Illinois Family Bereavement Leave

ILCBLL does not run concurrently with ILFNICU but may be a factor depending on the situation (births with multiples, loss of child after/during NICU care).

Employee and Employer Responsibilities

Employee Responsibilities

Provide documentation where applicable; and
Follow any applicable employer policies and procedures for time off reporting

Employer Responsibilities

There are no posting requirements for this law;
Determine if intermittent/reduced schedule restrictions will be implemented; and
Decide if verification will be required.

Resources

Illinois Legislation: https://www.ilga.gov/Legislation/ILCS/Articles?ActID=4623&ChapterID=68&Chapter=EMPLOYMENT&MajorTopic=BUSINESS%20AND%20EMPLOYMENT

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