Some states have laws requiring employers to offer parental leave or pregnancy leave to employees who have children. However, Illinois is not among them. Unless your employer has its own parental leave or disability leave policy, you will have to rely on the federal Family and Medical Leave Act (FMLA) to take time off for a new child.
Illinois and federal law protect employees from pregnancy discrimination. If you are temporarily unable to work due to pregnancy, for example, your employer must treat you just as it treats other employees with temporary disabilities. This might allow you to take some time off while you are pregnant, but once you have a child, pregnancy discrimination laws don't give you any leave rights. For that, you'll have to turn to the FMLA.
Parental Leave Rights Under the FMLA
The FMLA gives eligible employees the right to take up to 12 weeks off in a 12-month period for a variety of health and caretaking reasons, including bonding with a new child. This leave applies equally to men and women, and to new parents of biological, adoptive, or foster children.
The FMLA also allows employees to take time off for their own serious health condition, which includes pregnancy. Pregnant employees can take time off under the FMLA if they are incapacitated (for example, due to severe morning sickness or medically required bed rest). Pregnant employees are also allowed to use FMLA leave for routine prenatal care, including check-ups.
FMLA leave is unpaid. However, you may choose, or your employer may require you, to use accrued paid leave during your FMLA leave. For example, if you take ten weeks of parental leave, and you have banked three weeks of vacation time, your employer may count the first three weeks of your FMLA leave as vacation time, pay you for them, and zero out your vacation balance.
Your employer must continue your health insurance benefits while you are on FMLA leave, just as if you were still working. If your employer typically pays the full premium, it must continue to do so during your leave. If you pick up part of the tab, you must continue to pay that amount while you are out of work.
Who Is Eligible for FMLA Leave?
Not every company and every employee is covered by the FMLA.
An employer must comply with the FMLA if it has at least 50 employees on at least 20 weeks of the current or preceding calendar year. The weeks need not be consecutive. All full-time employees, part-time employees, and employees who are on leave and expected to return to work count toward the total; independent contractors do not.
Employees are eligible for FMLA leave if they meet all three of these conditions:
- The employee must have worked for the employer for at least 12 months. The employee need not have been employed for 12 months consecutively. All time worked for the employer counts toward the total, except for time worked prior to a break in service of seven years of more.
- The employee must have worked at least 1,250 hours in the 12 months immediately preceding the employee's leave. This works out to about 24 hours a week.
- The employee must work at a site with at least 50 employees within a 75-mile radius. An employee who works at a remote satellite office might not be protected by the FMLA, even if her employer has hundreds of employees.
Using Parental Leave
As noted above, the FMLA gives employees the right to take up to 12 weeks off. If you use FMLA leave to bond with a new child, you must finish taking your leave within one year after the new child arrives.
Special rules apply if both parents work for the same employer. If you and your child's other parent are not married, you are each entitled to a full 12 weeks of FMLA leave. However, if you are married to each other, your employer can limit you to a total of 12 weeks of parental leave. Any FMLA leave you don't use for parental leave will still be available for other types of FMLA leave.
For example, let's say an employee needs FMLA leave for the last four weeks of her pregnancy, because her doctor has put her on bed rest. She would still have eight weeks of FMLA leave to use as parental leave. Her husband would have only four weeks of FMLA leave to use as parental leave, because their employer limits spouses to 12 weeks of total parental leave. However, the husband would still have eight weeks of FMLA leave left to use for other purposes, such as his own serious health condition.
Returning to Work
The FMLA requires employers to reinstate employees to the same position once their leave is up. If that position isn't available, the employer must restore the employee to a position that is equivalent. As a practical matter, this means the position must be nearly the same, in every important respect, as the position the employee formerly held. If an employer demotes the employee, offers her lower pay or reduced benefits, or otherwise returns her to an inferior position, this violates the FMLA.
If, like some new parents, you decide not to return to work after having a child, your employer might be able to recoup what it spent on your health benefits during leave. However, an employer can seek reimbursement for benefits only if you voluntarily decide not to go back to work. If you are unable to go back to work (for example, because your child was born with a serious disability and requires your care), the employer cannot require you to pay back your health insurance costs.