Thomas C. Garretson, Robbins Schwartz, Chicago
312-332-7760 | Email Thomas C. Garretson
NICU Leave and Paid Nursing Breaks: What Illinois Workplaces Must Know for 2026
As we move toward 2026, Illinois employers need to begin preparing for a number of changes and updates to applicable employment laws, specifically those providing additional rights to parents and nursing mothers. Below is a summary of the changes expanding the workplace rights afforded to parents and nursing mothers in 2026. Illinois employers should closely review these changes and update existing workplace policies and procedures accordingly.
Family Neonatal Intensive Care Leave Act
On August 15, 2025, Governor J.B. Pritzker signed into law P.A. 104-0259, which creates the Family Neonatal Intensive Care Leave Act. Effective June 1, 2026, the Act provides for unpaid neonatal intensive care leave to employees who have a child that is a patient in a neonatal intensive care unit (NICU). The Act defines “child” as 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. The Act further defines “neonatal intensive care unit” as a special care unit that provides medical treatment to premature and critically ill infants.
For those employers with between 16 and 50 employees, an employee with a child being treated in a NICU is entitled to use a maximum of 10 days of unpaid leave while the employee’s child is a patient in a NICU. For those employers with 51 or more employees, an employee is entitled to use 20 days of unpaid leave. The unpaid leave may be taken continually or intermittently at the employee’s selection. Employers may require that the leave be taken in minimum increments of not less than two hours. Employers may not require that an employee use paid leave instead of leave the employee is entitled to under the Act. However, an employee may elect to substitute paid leave (e.g., sick leave, personal leave) for an equivalent period of unpaid leave provided under the Act. Employees who are entitled to leave under the Family and Medical Leave Act of 1993 (FMLA), Pub.L. No. 103-3, 107 Stat. 6, and takes leave shall be granted, upon completion of and in addition to any leave taken under the FMLA, any leave available under the Act (i.e., leave taken under the Act is in addition to FMLA leave).
After taking neonatal intensive care leave, an employee must be reinstated to their former position or a substantially equivalent one with no loss of benefits held or accrued prior to taking the leave. During the leave, any health insurance benefits shall be maintained as if an employee had not taken leave. Employees may not be required to provide a replacement worker while taking leave. Employers may require “reasonable verification” of the employee’s child’s length of stay in a NICU. However, an employer may not request any confidential information protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L. No. 104-191, 110 Stat. 1936, or other law.
Employers are prohibited from taking adverse actions against an employee because the employee exercises rights under the Act. Employees who believe their rights have been violated under the Act must, within 60 days after the date of the last event constituting the alleged violation, file a complaint with the Illinois Department of Labor (IDOL) or file a civil action. IDOL is responsible for administering and enforcing the Act, including the adoption of administrative rules. If IDOL conducts an investigation and finds cause to believe the Act has been violated, the matter shall be referred to an administrative law judge to schedule a formal hearing. IDOL is authorized to impose civil penalties and bring any legal action necessary to recover unpaid wages, damages, and penalties. Employers that violate the Act are subject to a civil penalty for each affected employee in an amount not to exceed $5,000. Any continuous period of time when any employee’s child is a NICU patient, during which time the employer is found to have violated the Act, shall constitute a single violation.
Paid Break Time for Nursing Mothers
Effective January 1, 2026, the Nursing Mothers in the Workplace Act, 820 ILCS 260/1, et seq., will require employers to compensate employees taking break time to express breast milk for nursing infant children, unless doing so would create an undue hardship as defined by the Illinois Human Rights Act, 775 ILCS 5/1-101, et seq. The law currently guarantees “reasonable break time” to an employee who needs to express breast milk for one year after the birth of the employee’s child. 820 ILCS 260/10. After January 1, 2026, employers will be expressly required to pay the employee during the break time at the employee’s regular rate of compensation. Employers will not be permitted to require an employee to use paid leave during the break time or reduce the employee’s compensation during the break time in any other manner.
For more information about employment and labor law, see LABOR LAW: UNFAIR LABOR PRACTICES (IICLE®, 2025). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.