Understanding how Illinois leave laws overlap with FMLA

Illinois employers must comply with numerous state leave laws, in addition to the federal FMLA. To track leave usage, employers must understand which state leave laws overlap with the FMLA.

The Illinois Family Military Leave Act covers all Illinois employers with 15 or more employees. All employers with 50 or more employees are subject to the FMLA, the Illinois School Visitation Act, the Victims’ Economic Security and Safety Act (VESSA) and the Employee Blood Donation Leave Act. All Illinois employers must obey the state’s jury-duty leave laws.

Illinois Family Military Leave Act

To qualify to take leave under the Illinois Family Military Leave Act, employees of covered employers must:

  • Be the spouse or parent of a person called to military service of more than 30 days by either the president or the governor.
  • Have been employed by the employer for at least 12 months.
  • Have worked more than 1,250 hours during the 12 months immediately preceding the leave.
  • Provide at least 14 days’ notice when the leave will be five days or more, or as much notice as possible when the leave will be less than five days.

The act gives family members a chance to spend time with the guard member or reservist before the person leaves for military service.

Employers with 15 to 50 employees must provide a maximum of 15 days’ leave, while larger employers must provide up to 30 days. Employees are required to schedule their leave to provide minimal workplace disruption. Family military leave is generally unpaid, but employers are free to substitute paid leave.

FMLA Cert D

Employers may not retaliate against employees in any way for taking leave under the act, and employees must be restored to the same or an equivalent position upon their return. Since family military leave does not depend on a medical condition, no FMLA issues arise.

Illinois School Visitation Act

Working parents are entitled to a maximum of eight hours per school year to attend school conferences or classroom activities when the activities cannot be scheduled during nonwork hours. Leave is limited to four hours per day.

School-visitation leave is unpaid, but employers must make a good-faith effort to allow the employee to make up the time. School-visitation leave generally doesn’t involve a serious health condition as defined by the FMLA, so it would not run concurrently with FMLA leave.

Victims’ Economic Security and Safety Act (VESSA)

VESSA prohibits employers from discharging or discriminating against an employee (regardless of gender) who is a victim of domestic violence or has a family or household member who is a victim of domestic violence. The affected employee is entitled to up to 12 weeks’ unpaid leave during any 12-month period to address the issues arising from domestic or sexual violence. VESSA leave may be taken intermittently or continuously. An employee may take VESSA leave to:

  • Seek medical attention for physical or psychological injuries to the employee or a member of the employee’s family or household.
  • Obtain victim services.
  • Receive psychological or other counseling.
  • Participate in safety planning, including finding a new home.
  • Seek legal assistance.

The employee is required to give the employer 48 hours’ notice before taking VESSA leave, except when it is impractical. If an unauthorized absence occurs, the employer is prohibited from taking action against the employee if the employee provides certification within a reasonable period after the absence. Certification includes providing a sworn statement and documentation from a victim services organization, attorney, member of the clergy, or medical or other related professional; a police or other court record; or other corroborating evidence. Employers must keep all VESSA certification information confidential.

Coordinating VESSA leave with FMLA leave can be tricky. If the employee has been injured or is taking leave to obtain psychological counseling, the leave could be covered by FMLA if the employee’s condition meets the FMLA’s definition of a serious health condition.

Employee Blood Donation Leave Act

The Employee Blood Donation Leave Act provides that an employee may use up to one paid hour (or more if authorized by the employer or a collective bargaining agreement) to donate blood every 56 days in accordance with appropriate medical standards established by the American Red Cross, America’s Blood Centers, the American Association of Blood Banks or other nationally recognized standards. FMLA is not a consideration here.

Jury and witness leave

Illinois employers can’t punish employees who are called to jury service. Employers don’t have to pay employees for jury duty. Employers may not force employees to use annual vacation, or sick leave while serving on a jury.

Employers that punish workers for serving on a jury may find themselves hauled before the court. Violators can be held in criminal contempt of court.

Employers are entitled to prior notice, although the law doesn’t say how early that notice should be given. Employers should therefore include jury and witness leave in their leave policies so they can clarify when and how employees should give notice.