Illinois NICU Leave Law Applies to All Employers With 16 or More Employees

Quick Hits

• Effective June 1, 2026, Illinois’s Neonatal Intensive Care Leave Act (NICLA) provides unpaid leave for parents with a child in a NICU, applicable to employers with sixteen or more employees.
• NICLA leave is separate from FMLA leave and offers additional protections for employees with newborns in intensive care.
• NICLA prohibits employers from retaliating against workers who take leave, assert their right to take leave, or otherwise support others who do so.

Who Is Covered?

The amount of leave required under NICLA depends on the size of the employer:

• Employers with fifteen or fewer employees are not covered by the law.
• Employers with sixteen to fifty employees must provide up to ten days of unpaid leave while an employee’s child is a patient in a NICU.
• Employers with more than fifty employees must offer up to twenty days of unpaid leave.

NICLA leave is available to employees regardless of their length of service or part-time or full-time status. The leave can be taken intermittently or continuously, and employers may establish a minimum increment of time in which leave may be used, as long as the increment is no greater than two hours.

The definition of “child” under NICLA includes “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

How NICLA Interacts With the FMLA

Importantly, NICLA leave is separate from and in addition to leave provided under the Family and Medical Leave Act (FMLA). Eligible employees must first exhaust their FMLA entitlement; if their child remains in the NICU after they exhaust their FMLA entitlement, they are then entitled to use NICLA leave.

As mentioned above, part-time or newly hired employees may still qualify for leave under NICLA even if they are not eligible for FMLA.

Unlike leave taken under the FMLA, however, employers may not require employees to use any accrued paid time off before taking NICLA leave. Employees may choose to use paid time off while taking leave under NICLA. Additionally, just like with FMLA leave, employees returning from leave must be reinstated to their original or an equivalent role with no loss of accrued benefits, including health insurance.

Verification and Compliance

Employers may request “reasonable verification” of the NICU stay, but they may not ask for information that would violate the Health Insurance Portability and Accountability Act (HIPAA) or other privacy laws (e.g., by requesting private medical details relating to the hospital stay). While the law does not currently define what counts as “reasonable verification,” it is expected that the Illinois Department of Labor (IDOL) will issue guidance. For now, documentation from a medical provider confirming the duration or expected length of the NICU stay would likely meet the requirement.

Protections and Penalties

NICLA mandates strong protections for employees. The IDOL is authorized to issue rules to clarify or enforce the law, which may include future notice requirements.

Employers are prohibited from retaliating against workers who take leave, assert their right to take leave, or otherwise support others who do so. Employees who believe their rights were violated have sixty days from the last event they allege constituted the violation to either file a complaint with the IDOL or to bring a civil action in court.

Violations can result in civil penalties of up to $5,000 per incident, along with payment of unpaid wages and other penalties.

Key Takeaways

NICLA represents a significant step forward in supporting families with newborns requiring intensive medical care. As NICLA is set to take effect on June 1, 2026, to stay compliant and avoid costly penalties, Illinois employers may consider:

• updating their employee handbooks to reflect NICLA’s requirements,
• training Human Resources and managers on NICLA compliance, and
• including NICLA information along with FMLA notices when an employee’s leave relates to a child’s NICU stay.

Ogletree Deakins’ Chicago and St. Louis offices will continue to monitor developments and will provide updates on the Illinois and Leaves of Absence blogs as new information becomes available.

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