November 2012

By: Jennifer Adams Murphy, Esq. and Ryan L. Young, Esq.

The Illinois Service Member’s Employment Tenure Act

Fact of the Month

Illinois employees who return to employment following active military service may not be terminated within one year of their return to employment without just cause. Illinois Service Member’s Employment Tenure Act, 330 ILCS 60/5.

Quiz

1. Gidgets Gadgets has 25 employees. Alice (a gadget assembler at Gidgets) recently requested a medical leave in order to remove a large bunion from her foot resulting from a rare chronic bunion condition. Alice needed to stay off of her feet after the surgery for 4 weeks and requested a medical leave from work. Was Gidgets required to give Alice the requested leave?

2. Arthur (another gadget assembler at Gidgets) also requested a leave. Arthur requested a four week leave in order to care for his mother, who coincidentally like Alice, suffered from chronic bunions. Was Gidgets required to give Arthur his requested leave?

3. Gidgets suddenly won several large gadget contracts and had to hire an additional 30 employees. Shortly after hiring the new employees, Ashton (one of the first employees hired by Gidgets five years ago) requested a leave of absence. Ashton’s daughter recently returned from Afghanistan where she had served a one year tour of duty in the Army. Ashton’s daughter had unfortunately been seriously injured and Ashton requested a leave of 20 weeks to care for his injured daughter. Was Gidgets required to give Ashton the requested leave?

4. Gidgets is headquartered in Chicago, Illinois. The Gidgets bookkeeper, Eloise, had recently been the victim of domestic violence. Eloise requested a three month leave in order to relocate to safer housing. At the time, Gidgets employed 35 individuals. Was Gidgets required to give Eloise the requested leave?

Answers

1. Maybe. Gidgets employed only 25 individuals and would not be required to grant the employee a medical leave under the Family Medical Leave Act. 29 USC §§ 2601 et seq. However, the analysis does not stop there.

Because Gidgets employs more than 15 employees, it is covered under the Americans with Disabilities Act, 42 USC §§ 12101 et seq. Gidgets must therefore evaluate whether the employee’s condition is a covered disability. If determined to be a covered disability, Gidgets must engage in an interactive process with the employee to assess whether it must grant Alice a medical leave as a reasonable accommodation. Note: Even an employer with as few as one employee is covered under the Illinois Human Rights Act provisions pertaining to disability discrimination. 775 ILCS 5/2-101 (B)(1).

2. No. Gidgets employs under 50 employees and is therefore not covered under the Family Medical Leave Act, 29 USC §§ 2601 et seq.

3. Yes. Ashton would be entitled to the leave under the Military Family Leave amendments to the Family Medical Leave Act. The Military Leave Act entitles family members up to 26 weeks of unpaid leave in order to care for a covered serviceperson injured in the line of duty. Note: Even employers with as few as 15 employees are entitled to provide leave, although shorter, to its military families. Illinois Family Leave Act, 820 ILCS 151.

4. No, but Gidgets is required to grant up to 8 weeks of leave to the employee. Under the Illinois Victims’ Economic Security and Safety Act (“VESSA”), an employer with between 25 and 49 employees is required to give their employees who are victims of domestic violence up to 8 weeks of unpaid leave in order to seek medical attention, obtain counseling, to engage in safety planning, to relocate to increase safety or to address legal issues. Illinois employers of over 50 individuals are, on the other hand, required to give 12 weeks of unpaid leave to their employees who are victims of domestic violence. 820 ILCS 180.