labor lawAdivision of labor law center

Just thought I would pop on here and let you know what I learned today about Illinois maternity leave laws from the Illinois Department of Labor web site. Hopefully you will find it interesting and useful!

In a nutshell, if you are a private sector employee Illinois has no laws guaranteeing job protection or benefits for new parents. So if you are a private sector employee your best bet is probably to use the two federal laws that come into play for pregnant women and new parents. They are the Pregnancy Discrimination Act and also by the Family Medical Leave Act.

The Pregnancy Discrimination Act ensures that pregnant women are treated just like everyone else at the company. Basically, it makes it illegal for employers to fire, refuse to hire, or deny a woman a promotion because she’s pregnant. Also, f a company offers sick leave or disability to other employees, and then it also must offer them for pregnancy-related issues.

The Family Medical Leave Act allows private or public sector employees 12 weeks of unpaid leave to, among other things, take care of a newborn baby or newly adopted child. One thing though—if you plan to take advantage of this act you have to work for an employer with more than 50 employees in a 75-mile radius.

There’s a provisions you should be aware of under the FMLA. It is that it is completely legal for key employees to be terminated during leave. What does this mean? It means that your company can terminate you during your leave. You are considered a key employee if you are in the top 10 percent of highest paid employees. This provision was designed to ease economic hardships for companies who were missing key employees.

How do you know if you are one of these key employees? Your company has to tell you. If they decided to terminate you, they also have to give you the options of returning to work before your leave is up.

Now, the story is a bit different if you are a state employee. State employees who are members of the state employees’ group insurance program may be eligible for family and medical leave benefits. Eligible female state employees who pre-certify their pregnancy within the first trimester are entitled to three work weeks, or 15 days, of paid maternity leave. Eligible male state employees who pre-certify their spouse’s pregnancy in the first trimester are entitled to two work weeks, or ten days, or paid paternity leave. Illinois state employees re also entitled to one year of job-protected family leave to care for a newborn.

But what if you are adopting? Well, I found out that state employees who can show that a formal adoption process is underway are entitled to two work weeks, or ten days, of paid adoption leave. The leave begins when the employee gets physical custody of the child.

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1. Posted by: Dan

   Hello,

   My wife and I are expecting twins sometime in November which will be delivered by C-section. I would imagine she will be in the hospital for a few days after this. I work for a company with only 7 employees. Three of us — myself and two others –are based out of Illinois. I would like to take a couple days off while she is in the hospital and a week on top of that after she has gotten out to help out. I have a week’s vacation but I do not want to use it for this. Is there anything that can help me out in my situatuion?

   Thank you,
   Dan

2. Posted by: Amelia

   Hi Dan — Congratulations on the new family! (Okay, we’re a little early.) This is a tricky question. If you pop over to our sister site, http://www.laborlawtalk.com, and post a question, they’ll be able to help you. Best Wishes! Amelia

3. Posted by: Lisa Benson

   I am a teacher and the last day of school is 6/12/09 but my due date is 6/19/09. I’m supposed to return in September but want to take maternity leave. Can I do this?

4. Posted by: Amelia

   Hi Lisa! Yes, you can probably take unpaid, job-protected leave under FMLA, the federal Family and Medical Leave Act. FMLA permits employees to take a total of 12 weeks of leave in a 12-month period.
   If your doctor puts you on disability before your due date, you are entitled to unpaid leave under FMLA.
   You can also take up to 12 weeks of unpaid leave for baby bonding during the child’s first year, under FMLA. However, FMLA is limited to a total of 12 weeks for all of these purposes, in a calendar year (not a school year.) For example, if you were off the last 2 weeks of the school term, then you could take 10 weeks beginning in September for baby bonding. But you could not take 12 weeks beginning in September for baby bonding, because you had already used 2 weeks. HTH, and thanks for reading the blogs!~ Amelia

5. Posted by: brad

   Where can one find information on how female Illinois state employees are eligble for 15 days paid maternity leave?

   How is eligible and how do you go about applying for it?

6. Posted by: Amelia

   Hi Brad! There is no state-wide paid maternity leave program in Illinois. Some individual employers may offer two weeks of short term disability, The best bet would be for the woman to contact her employer about this. HTH, and thanks for reading the blogs!~ Amelia

7. Posted by: Jessica

   I had a baby in March, took my 8 weeks of leave (paid by my accumulated sick days), and am back to work. The school district I work for is hassling me by not paying me in a timely manner for the time I have worked since returning from leave. I have been back for one month (two pay cycles) and still have received no compensation. They claim they can’t do anything until the next pay cycle (June 15). By then I will have worked 6 weeks without receiving pay. Is there any thing in the FMLA about pay upon returning to work?

8. Posted by: Amelia

   Hi Jessica! There is nothing in the FMLA, however, under the Illinois Payday law, an employer must pay the worker on payday. Period. The paycheck cannot be late, even by one day. Our suggestion: let the employer know that you expect to be paid by the next business day. If that deadline is not met, file a wage claim with the Illinois Department of Labor. We can almost guarantee that you will have your paycheck within 48 hours after the employer knows that you filed a wage claim. HTH, and thanks for reading the blogs!~ Amelia

   File a wage claim at: http://www.state.il.us/agency/idol/laws/Law115.htm
   Read about the Illinois Payday Law at: http://www.state.il.us/agency/idol/laws/Law115.htm

9. Posted by: Bogna

   I’m in my 6th week of my 9 weeks of maternity leave. I would like to extend it to the 12weeks leave. Can I request it now without prevoius notice to an employer?

10. Posted by: Amelia

    Hi Bogna! Yes, you can (and should) let the employer know now that you do not plan to return to work when the 9 weeks are up. If your employer has 50 or more workers within 75 miles, you probably covered by FMLA, and entitled to up to 12 weeks of unpaid leave. Even after your doctor releases you to return to work, you can take the remainder of the 12 weeks to bond with your baby. HTH, and thanks for reading the blogs!~ Amelia

11. Posted by: Alice

    My husband and I are just starting a family and I asked my employer if they offer any maternity leave and they do not offer anything. The only thing they offer is a 2 week vacation plan, if you have not used it already, and any sick/personal days paid that you have left. They also provide us with an FMLA option, we are guaranteed to get our job or an identical job back upon our return. My question: is it true that it’s not mandatory for companies to provide one with maternity leave? And is there something I can do to receive some kind of help during my maternity leave?

12. Posted by: Amelia

    Hi Alice! Yes, it is true that Illinois employers are not required to provide any paid maternity leave. In fact, FMLA is the only “maternity” leave required in most states. (A few states extend FMLA-type benefits to smaller companies, but no states require employers to provide paid leave.) Across the nation, millions of women who work for companies with fewer than 50 employees are not entitled to any “maternity” leave at all — even unpaid. Those women often lose their jobs when they have a child. A handful of states provide 6 to 8 weeks of short term disability benefits for new mothers, but Illinois does not. HTH, and thanks for reading the blogs!~ Amelia

13. Posted by: jean

    I work at a salon\day spa with roughly 40 employees. I took a maternity leave about 2 years ago in September for 7 weeks. I started working there march 22nd 2007, when I got back from my leave they said my new start date was may 22nd because I took a leave? I have never been at a job who has done that is that legal? we don”t get paid maternity but we do get 2 weeks paid every year we work there. in our contract it does state that we do get a 12 week leave for any person medical or maternity leave. So what is right?

14. Posted by: Amelia

    Hi jean! The company is basically saying that you do not earn benefits while you are on leave. Rather than figure your seniority by saying “Well, she has been here 24 months but she took a two-month leave of absence, so she’s really only been here for 22 months…” they simply treat you as if your hire date was 8 weeks later, on May 22 instead of March 22. This makes it fair in determining anniversary dates for vacation, raises, evaluations, etc.

    Another way of saying this: You started on May 22, 2007. You took a leave of absence of about 8 weeks. That does not count as time worked, so you reached your one-year anniversary on May 22, 2008 — after you had worked 12 months.

    If you took another 8 weeks of unpaid leave, your new “anniversary date” would July 22. This is the date used for calculating benefits.

    However, your actual hire date for unemployment and other legal purposes is still March 22, 2007. This is completely legal and fair. HTH, and thanks for reading the blogs!~ Amelia