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Illinois Employment Law Alert: Illinois Meal Break and Bereavement Leave Laws Updated

Posted: July 11, 2022

Illinois employers should be aware of two existing employment laws that have recently been updated, potentially requiring significant modifications to their policies and procedures. As detailed more fully below, the One Day Rest in Seven Act and the Child Bereavement Leave Act have been amended requiring employers to take action by the end of this year.

One Day Rest In Seven Act

On May 13, 2022, Governor J.B. Pritzker signed Senate Bill 3146, amending the Illinois “One Day Rest in Seven” Act (ODRISA) into law. ODRISA was originally enacted to provide employees with meal breaks during daily work shifts and a day of rest in each calendar week. The amendments to ODRISA tighten the period in which an employee is entitled to a rest day and add additional meal break requirements. The amendments also ramp up the penalties for ODRISA violations and impose additional notice requirements on employers. The changes become effective on January 1, 2023.

Eligibility

ODRISA applies to employers with one or more employees in Illinois. ODRISA generally applies to non-exempt employees, subject to certain exceptions.

Meal Period Requirements

ODRISA currently requires employers to provide a meal period of at least twenty (20) minutes for employees who work for 7.5 continuous hours or longer. The meal break must begin no later than 5 hours after the start of the work period.

The amended law will now require employers to provide additional 20-minute meal breaks for every 4.5 continuous hours worked after the first 7.5 continuous hours. For example, an employee who works a 12-hour shift will now be entitled to two 20-minute meal breaks. The amendments specifically prohibit employers from designating “reasonable time spent using the restroom facilities” as a meal period.

Subsequent Days of Rest

ODRISA also currently requires that employers provide employees with at least 24 consecutive hours of rest during “every calendar week.” The inclusion of the term “calendar week” allowed employers to interpret the statute narrowly to mean a Sunday to Saturday calendar workweek. Thus, if a rest day occurred at the beginning of a calendar week, an employer could require employees to work for up to 12 consecutive days as long as the next rest day occurred at the end of the following calendar week. The amendments eliminate this loophole, by changing “calendar week” to “consecutive seven-day period.” This means an employee will be entitled to at least 24 consecutive hours of rest within every consecutive seven-day period.

Notice Requirements

The amendments also mandate additional notice requirements for employers. Employers covered by ODRISA must post, in one or more conspicuous places on their premises where notices to employees are customarily posted, a notice summarizing the requirements of ODRISA and information pertaining to the filing of a complaint for violating ODRISA. For employees who work remotely or who otherwise do not regularly report to a physical workplace, the employer must provide the notice by email or on a website. Such website must be regularly used by the employer to communicate work-related information, and all employees must be able to freely and regularly access it.

The Illinois Department of Labor (IDOL) will provide the required notice on its website. The IDOL currently has an ODRISA notice on its website, however this notice reflects the current version of the law, not the amendments. An updated notice is expected to be provided by the IDOL prior to the January 1, 2023 effective date of the amendments to ODRISA.

Penalties

Penalties for violating ODRISA have been substantially increased as a result of the amendments. ODRISA violations were previously classified as petty offenses and the penalties were relatively minor: no less than $25 and no more than $100 per violation. Under the amended law, violations are now categorized as civil offenses and the penalties are significantly higher. For employers with fewer than 25 employees, the civil penalty for a violation of the meal period requirement may be as high as $500 per offense ($250 to the IDOL and $250 to the affected employee). For larger employers (25+ employees), the penalty may be as high as $1,000 per offense, with $500 going to the IDOL and $500 to the affected employee. With the new penalty structure allowing affected employees to collect money, employees now have a direct incentive to report ODRISA violations. Employers should be especially aware of this change to ODRISA.

Employers should also note that for purposes of assessing civil penalties: (1) each employee whose rights are violated under the Act constitutes a separate offense, (2) each day that an employee is not provided with the required meal period(s) constitutes a separate offense, and (3) each “week” (presumably, each consecutive 7-day period) during which an employee is not provided with the required 24 hours of rest constitutes a separate offense. As you can imagine, these penalties can add up very quickly if the violation continues and/or involves a group of employees.   

Failure to comply with the notice-posting requirement is considered a single offense, subject to a penalty of no more than $250.

Family Bereavement Leave Act

On June 9, 2022, Governor Pritzker signed into law Senate Bill 3120, the Family Bereavement Leave Act (FBLA), which amends the Child Bereavement Leave Act (CBLA). The FBLA expands the unpaid bereavement leave available to employees in Illinois and becomes effective on January 1, 2023.

Eligibility

The CBLA and FBLA cover public and private employers with at least 50 employees. Similar to the Family and Medical Leave Act, the CBLA and FBLA apply to employees who have worked 1,250 hours for the employer during the prior 12-month period.

Additional Requirements Under the FBLA

The CBLA previously provided unpaid leave for parents and guardians in the event of the loss of a biological or adopted child, a foster placement, or a stepchild. The FBLA expanded the coverage to provide bereavement leave for the death of a “covered family member,” which now includes an employee’s:

  1. Child;
  2. Stepchild;
  3. Spouse;
  4. Domestic partner;
  5. Sibling;
  6. Parent or step-parent;
  7. Mother-in-law or father-in-law;
  8. Grandchild; or
  9. Grandparent.

The FBLA broadly defines “domestic partners” as adults who are in a committed relationship. The definition specifies that “domestic partners” do not have to be in a legally recognized partnership.

Employers are now required to provide up to 10 days of unpaid leave to employees who are absent due to:

  1. Attending the funeral or alternative to a funeral of a covered family member;
  2. Making arrangements necessitated by the death of a covered family member;
  3. Grieving the death of a covered family member;
  4. A miscarriage;
  5. An unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure (e.g., artificial insemination or embryo transfer);
  6. A failed adoption match or an adoption that is not finalized because it is contested by another party;
  7. A diagnosis that negatively impacts pregnancy or fertility; or
  8. A stillbirth.

Employees can also use this time off to support a spouse or partner experiencing one of these losses.

Can Employers Request Documentation?

An employer may, but does not have to, require documentation for leave under the FBLA. However, in regard to leave resulting from miscarriage, stillbirth, failed adoption or other pregnancy-related loss, employers cannot require that the employee disclose which category of event the leave stems from.

Penalties

While the FBLA does not add any new penalties, employers should remember the existing penalties written into law under the CBLA. Employers who violate any provisions of the Act will be assessed a civil penalty not to exceed $500 for the first offense and $1,000 for each subsequent offense. In the event of a violation, employees may file complaints with the Illinois Department of Labor or file a civil action in state court within 60 days of an alleged violation. Employers are also prohibited from retaliating or taking any other adverse action against employees who: (1) exercise their rights or attempt to exercise their rights under the Act, (2) oppose practices the employee believes constitute violations of the act, or (3) support the exercise of the rights of others under the Act.

What Should Employers Do Now?

In light of these amendments, all employers in Illinois, should promptly review their meal break, time off and bereavement policies and procedures, which will almost certainly need revisions to comply with the new state requirements. Likewise, employers must be sure to fulfill the new notice obligations. Finally, employers are advised to retain written records to show compliance with the new legislation in order to avoid potential violations. Notably, because each non-compliant day or week constitutes a separate offense, penalties can mount quickly.

Our labor and employment attorneys regularly provide guidance on employee leave and meal break policies, and also provide a suite of employee trainings on these subjects. Therefore, if you have any questions about the ODRISA, the FBLA, or any of your employment policies, please reach out to your regular Saul Ewing Arnstein & Lehr LLP attorney. Please note: Summer Associate, Alexandra Spaw, contributed to the writing of this blog post.