Maternity Leave and Parental Leave Rights in Illinois

There are federal and state laws in Illinois that protect your rights when you're expecting a new child. Some entitle you to take time off work, including maternity leave and parental leave.

The Illinois Human Rights Act provides protection from employment discrimination based on pregnancy, childbirth, and related conditions, and that can include taking time off work. But for parental leave in Illinois, you'll have to rely on the federal Family and Medical Leave Act (FMLA) if you want to take leave to bond with your new child.

In addition, the federal Pregnancy Discrimination Act (PDA) prohibits your employer from discriminating against you because of your pregnancy—which gives you the right to take time off work in some cases. And the 2023 Pregnant Workers Fairness Act (PWFA), another federal law, strengthens these protections.

Here's what you need to know about the laws in Illinois that protect your right to take time off when you're expecting a new baby.

Taking Time Off Under Federal Pregnancy Laws

Under the federal Pregnancy Discrimination Act (PDA), if you can't work due to pregnancy, your employer is required to you the same as other temporarily disabled employees. For example, if your employer allows employees to take time off work to heal from broken bones or surgeries, your employer must also allow you to take time off if necessary due to pregnancy.

The 2023 Pregnant Workers Fairness Act (PWFA) takes this one step further, requiring covered employers (those with 15 employees or more) to provide reasonable accommodations to employees who need them due to pregnancy, childbirth, and related conditions. Under this law, reasonable accommodations can include time off work.

Pregnancy Rights Under the Illinois Human Rights Act

The Illinois Human Rights Act (IHRA) was amended in 2014 to add broad employment protections for pregnant workers. The law prohibits discrimination on the basis of pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth, and it requires your employer to give you time off if it's medically necessary. (IHRA 775 Ill. Comp. Stat. § 5/2-102(I-J).)

All employers (with one or more employees) must provide you with "reasonable accommodations" for any medical or common condition related to pregnancy or childbirth unless doing so would create an "undue hardship" for the employer. Under the Illinois Human Rights Act, reasonable accommodations can include (but aren't limited to) the following:

• time off to recover from childbirth
• a part-time or modified work schedule
• leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth
• additional or longer bathroom breaks and breaks for rest or water
• allowing you to sit when the job is usually done standing, and
• assistance with manual labor.

Your employer can request documentation from your health care provider of your need for the accommodation, including:

• the medical justification for the accommodation
• a description of the accommodation needed, and
• how long you're expected to need the accommodation.

The IHRA bars your employer from taking adverse action against you because you need a reasonable accommodation for pregnancy or childbirth. And the law prohibits your employer from forcing an accommodation on you that you didn't request. (IHRA, 775 Ill. Comp. Stat. § 5/2-102 (J)(2-3).)

The Illinois Human Rights Act offers you broad employment protections during pregnancy and recovery from childbirth. (Learn more about your pregnancy rights under Illinois law from the Illinois Department of Human Rights.) But the IHRA doesn't give you the right to take time off for parenting, to bond with your new baby. For that, you'll need to rely on the federal Family and Medical Leave Act.

Parenting and Maternity Leave Rights in Illinois 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 all new parents, whether the child is yours by:

• birth
• adoption, or
• fostering.

The FMLA also allows employees to take time off for their own serious health conditions, which can include pregnancy. Pregnant employees can take time off under the FMLA if they're 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.

Is Illinois FMLA Leave Paid?

FMLA leave is unpaid. But you can choose to use paid leave or vacation time (if you have any) during your FMLA leave. Your employer can also require you to use paid time off (if you have any accrued) during FMLA leave.

For example, if you take ten weeks of parental leave and you've banked three weeks of vacation time, your employer can count the first three weeks of your FMLA leave as vacation time, pay you for them, and zero out your vacation balance. Those paid weeks off would still count toward your 12-week FMLA limit.

Your employer must continue your health insurance benefits while you're 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. But if you pick up part of the tab, you must continue to pay that amount while you're not working.

(Learn about getting and using short-term disability insurance for pregnancy and childbirth to get your leave paid.)

Who's Eligible for FMLA Leave in Illinois?

Not every company and every employee in Illinois is covered by the FMLA.

An employer must comply with the FMLA if it had at least 50 employees during at least 20 weeks of the current or preceding calendar year. The weeks don't have to be consecutive. All full-time and part-time employees and employees who are on leave and expected to return to work count toward the total. But independent contractors don't.

If you work for a covered employer, you're eligible for FMLA leave if you meet all three of these conditions:

• You've worked for the employer for at least 12 months (not necessarily consecutively). All your time working for the employer counts toward the total, except for time worked before a break in service of seven years or more.
• You must have worked at least 1,250 hours in the 12 months immediately before your leave begins. This works out to about 24 hours a week.
• You must work at a site with at least 50 employees within a 75-mile radius. If you work at a remote satellite office, you might not be protected by the FMLA, even if your employer has hundreds of employees.

Using Parenting Leave Under the FMLA

You can use up to 12 weeks of FMLA leave to bond with a new child. But you must finish taking that parental leave within one year after the child's birth or placement in your home.

Special rules apply if both parents work for the same employer. If you and your child's other parent are married to each other, your employer can require you to share that 12 weeks of parental leave a year. Any FMLA leave you don't use for parental leave will still be available for other types of FMLA leave.

If you and your child's other parent aren't married, you're each entitled to a full 12 weeks of FMLA leave for parenting.

Returning to Work in Illinois After FMLA Leave

The FMLA requires your employer to reinstate you to the same position once your leave is up. If that position isn't available, your employer must give you a position that's equivalent to the one you had before taking FMLA leave.

As a practical matter, this means the position must be nearly the same, in every important respect, as the position you formerly held. It's a violation of the FMLA if your employer:

• demotes you
• offers you lower pay or reduced benefits, or
• otherwise places you in an inferior position.

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. But your employer can only seek reimbursement for benefits if you voluntarily decide not to go back to work.

If you want to return to work, but you're unable to go back (for example, because your child was born with a serious disability and requires your care), your employer can't require you to pay back your health insurance costs.

For more information, see our article on FMLA leave for pregnancy and parenting.

_{Updated July 21, 2023}