Frequently Asked Questions: Family Neonatal Intensive Care Leave Act

The Family Neonatal Intensive Care Leave Act (NICU Leave) entitles eligible employees with up to 20 days of unpaid, job-protected leave while a child of an employee is a patient in a neonatal intensive care unit (NICU). 

For purposes of NICU leave, a neonatal intensive care unit is a special care unit that provides medical treatment to premature and critically ill infants. 

Employees who primarily work in Illinois and are employed by an employer who has 16 or more employees. 

If an employee meets the other eligibility requirements under the law, then they are entitled to NICU leave, even if they are covered by a collective bargaining agreement.

For purposes of NICU leave, a child means an employee’s son or daughter who is a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person standing in loco parentis. 

Yes. For employees who are eligible for FMLA leave, NICU leave may be taken even if FMLA leave is exhausted. An employer cannot reduce an eligible employee’s available NICU leave because the employee took FMLA.  

No. An employee does not need to be eligible for FMLA leave to be eligible for NICU leave. An employee needs to primarily work in Illinois and be employed by an employer who has at least 16 employees to be eligible for NICU leave.

If an employer has 16-50 employees, then their employees are entitled to a maximum of 10 days of unpaid NICU leave. If an employer has 51 or more employees, then their employees are entitled to a maximum of 20 days of unpaid NICU leave. 

Yes. Since the employer has more than 16 employees, then the employees working in Illinois are eligible for NICU leave. 

No. An employee is only entitled to NICU leave for the maximum number of days (10 or 20) or the length of time the employee’s child was a patient in a NICU, whichever is less. 

No. The Act does not provide NICU leave for each child. Instead, the Act provides employees with a maximum number of days total, no matter the number of children in NICU. For example, if two children are patients in the NICU at the same time, an employee working for an employer with 60 employees would only be entitled to a maximum of 20 unpaid NICU leave days total. As another example, if an employee working for an employer with 20 employees has one child who is a patient in the NICU for 5 days and then has another child who is later a patient in the NICU for 10 days, the employee would only be entitled to a maximum of 10 unpaid NICU leave days total.  

No. The Act allows employees to take NICU leave continuously (all at once) or intermittently in increments of no less than 2 hours.

While not required by the Act, an employer may require reasonable verification of the employee’s child’s length of stay in the NICU. However, an employer cannot request any confidential information protected by HIPAA as part of the reasonable verification. 

No. An employee may choose to use any paid leave time an employer provides while taking NICU leave. For example, if an employer provides 5 days (or 40 hours) of paid leave, an employee may choose to substitute 5 of their unpaid NICU leave days with 5 days of paid leave. However, an employer cannot require an employee to use any paid leave time to cover the unpaid NICU leave days.

No. The Act prohibits an employer from requiring an employee to provide a replacement worker in order to use NICU leave. 

Yes. An employer is required to maintain an employee’s health insurance benefits.

Yes, an employee must be reinstated to their former position or a substantially equivalent position with no loss of benefits held or accrued before they took NICU leave.

Any employee who believes their rights under the Act are violated can file a NICU leave complaint with the IDOL. Employees can file a complaint using our online form or by using a paper complaint form. 

A NICU leave complaint must be filed with IDOL within 60 days after the date of the last event constituting an alleged violation for which the action is brought. Employees may also file a private civil action in the circuit court of the county in which they worked.

The online NICU leave complaint form is available on the IDOL website. For more information about NICU leave, contact the IDOL Leave Rights Division at DOL.LeaveRights@illinois.gov or 312-793-2600.

No. NICU leave complaints are specific to each individual complainant’s circumstances. Anonymous complaints may not be investigated. 

Your complaint will be reviewed by the Leave Rights Division staff. If your complaint moves forward to an investigation, it will be assigned to an IDOL staff member who will reach out to you.

No, an employee does not need an attorney to file a NICU leave complaint with IDOL.

The Department can impose civil penalties against an employer for violations of the Act. 

Yes. An employee who believes their employer violated the Act may either file a complaint with the Department or file a lawsuit in the circuit court.

No. An employee does not have to file a complaint with the Department before filing a lawsuit in the circuit court.

Additional questions may be directed to the IDOL Leave Rights Division at DOL.LeaveRights@illinois.gov or 312-793-2600.