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1 | AN ACT concerning employment.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Workers' Compensation Act is amended by | |||||||||||||||||||||
5 | changing Section 4 as follows:
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6 | (820 ILCS 305/4) (from Ch. 48, par. 138.4)
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7 | Sec. 4. (a) Any employer, including but not limited to | |||||||||||||||||||||
8 | general contractors
and their subcontractors, who shall come | |||||||||||||||||||||
9 | within the provisions of
Section 3 of this Act, and any other | |||||||||||||||||||||
10 | employer who shall elect to provide
and pay the compensation | |||||||||||||||||||||
11 | provided for in this Act shall:
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12 | (1) File with the Commission annually an application | |||||||||||||||||||||
13 | for approval as a
self-insurer which shall include a | |||||||||||||||||||||
14 | current financial statement, and
annually, thereafter, an | |||||||||||||||||||||
15 | application for renewal of self-insurance, which
shall | |||||||||||||||||||||
16 | include a current financial statement. Said
application | |||||||||||||||||||||
17 | and financial statement shall be signed and sworn to by the
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18 | president or vice president and secretary or assistant | |||||||||||||||||||||
19 | secretary of the
employer if it be a corporation, or by all | |||||||||||||||||||||
20 | of the partners, if it be a
copartnership, or by the owner | |||||||||||||||||||||
21 | if it be neither a copartnership nor a
corporation. All | |||||||||||||||||||||
22 | initial applications and all applications for renewal of
| |||||||||||||||||||||
23 | self-insurance must be submitted at least 60 days prior to | |||||||||||||||||||||
24 | the requested
effective date of self-insurance. An | |||||||||||||||||||||
25 | employer may elect to provide and pay
compensation as | |||||||||||||||||||||
26 | provided
for in this Act as a member of a group workers' | |||||||||||||||||||||
27 | compensation pool under Article
V 3/4 of the Illinois | |||||||||||||||||||||
28 | Insurance Code. If an employer becomes a member of a
group | |||||||||||||||||||||
29 | workers' compensation pool, the employer shall not be | |||||||||||||||||||||
30 | relieved of any
obligations imposed by this Act. A person | |||||||||||||||||||||
31 | who knowingly provides false information on an initial or | |||||||||||||||||||||
32 | renewal self-insurance application or accompanying |
| |||||||
| |||||||
1 | financial statement is guilty of a business offense for | ||||||
2 | which a fine not to exceed $50,000 may be imposed.
| ||||||
3 | If the sworn application and financial statement of any | ||||||
4 | such employer
does not satisfy the Commission of the | ||||||
5 | financial ability of the employer
who has filed it, the | ||||||
6 | Commission shall require such employer to,
| ||||||
7 | (2) Furnish security, indemnity or a bond guaranteeing | ||||||
8 | the payment
by the employer of the compensation provided | ||||||
9 | for in this Act, provided
that any such employer whose | ||||||
10 | application and financial statement shall
not have | ||||||
11 | satisfied the commission of his or her financial ability | ||||||
12 | and
who shall have secured his liability in part by excess | ||||||
13 | liability insurance
shall be required to furnish to the | ||||||
14 | Commission security, indemnity or bond
guaranteeing his or | ||||||
15 | her payment up to the effective limits of the excess
| ||||||
16 | coverage, or
| ||||||
17 | (3) Insure his entire liability to pay such | ||||||
18 | compensation in some
insurance carrier authorized, | ||||||
19 | licensed, or permitted to do such
insurance business in | ||||||
20 | this State. Every policy of an insurance carrier,
insuring | ||||||
21 | the payment of compensation under this Act shall cover all | ||||||
22 | the
employees and the entire compensation liability of the | ||||||
23 | insured:
Provided, however, that any employer may insure | ||||||
24 | his or her compensation
liability with 2 or more insurance | ||||||
25 | carriers or may insure a part and
qualify under subsection | ||||||
26 | 1, 2, or 4 for the remainder of his or her
liability to pay | ||||||
27 | such compensation, subject to the following two | ||||||
28 | provisions:
| ||||||
29 | Firstly, the entire compensation liability of the | ||||||
30 | employer to
employees working at or from one location | ||||||
31 | shall be insured in one such
insurance carrier or shall | ||||||
32 | be self-insured, and
| ||||||
33 | Secondly, the employer shall submit evidence | ||||||
34 | satisfactorily to the
Commission that his or her entire | ||||||
35 | liability for the compensation provided
for in this Act | ||||||
36 | will be secured. Any provisions in any policy, or in |
| |||||||
| |||||||
1 | any
endorsement attached thereto, attempting to limit | ||||||
2 | or modify in any way,
the liability of the insurance | ||||||
3 | carriers issuing the same except as
otherwise provided | ||||||
4 | herein shall be wholly void.
| ||||||
5 | Nothing herein contained shall apply to policies of | ||||||
6 | excess liability
carriage secured by employers who have | ||||||
7 | been approved by the Commission
as self-insurers, or
| ||||||
8 | (4) Make some other provision, satisfactory to the | ||||||
9 | Commission, for
the securing of the payment of compensation | ||||||
10 | provided for in this Act,
and
| ||||||
11 | (5) Upon becoming subject to this Act and thereafter as | ||||||
12 | often as the
Commission may in writing demand, file with | ||||||
13 | the Commission in form prescribed
by it evidence of his or | ||||||
14 | her compliance with the provision of this Section.
| ||||||
15 | (a-1) Regardless of its state of domicile or its principal | ||||||
16 | place of
business, an employer shall make payments to its | ||||||
17 | insurance carrier or group
self-insurance fund, where | ||||||
18 | applicable, based upon the premium rates of the
situs where the | ||||||
19 | work or project is located in Illinois if:
| ||||||
20 | (A) the employer is engaged primarily in the building | ||||||
21 | and
construction industry; and
| ||||||
22 | (B) subdivision (a)(3) of this Section applies to the | ||||||
23 | employer or
the employer is a member of a group | ||||||
24 | self-insurance plan as defined in
subsection (1) of Section | ||||||
25 | 4a.
| ||||||
26 | The Industrial Commission shall impose a penalty upon an | ||||||
27 | employer
for violation of this subsection (a-1) if:
| ||||||
28 | (i) the employer is given an opportunity at a hearing | ||||||
29 | to present
evidence of its compliance with this subsection | ||||||
30 | (a-1); and
| ||||||
31 | (ii) after the hearing, the Commission finds that the | ||||||
32 | employer
failed to make payments upon the premium rates of | ||||||
33 | the situs where the work or
project is located in Illinois.
| ||||||
34 | The penalty shall not exceed $1,000 for each day of work | ||||||
35 | for which
the employer failed to make payments upon the premium | ||||||
36 | rates of the situs where
the
work or project is located in |
| |||||||
| |||||||
1 | Illinois, but the total penalty shall not exceed
$50,000 for | ||||||
2 | each project or each contract under which the work was
| ||||||
3 | performed.
| ||||||
4 | Any penalty under this subsection (a-1) must be imposed not | ||||||
5 | later
than one year after the expiration of the applicable | ||||||
6 | limitation period
specified in subsection (d) of Section 6 of | ||||||
7 | this Act. Penalties imposed under
this subsection (a-1) shall | ||||||
8 | be deposited into the Industrial Commission
Operations Fund, a | ||||||
9 | special fund that is created in the State treasury. Subject
to | ||||||
10 | appropriation, moneys in the Fund shall be used solely for the | ||||||
11 | operations
of the Industrial Commission.
| ||||||
12 | (b) The sworn application and financial statement, or | ||||||
13 | security,
indemnity or bond, or amount of insurance, or other | ||||||
14 | provisions, filed,
furnished, carried, or made by the employer, | ||||||
15 | as the case may be, shall
be subject to the approval of the | ||||||
16 | Commission.
| ||||||
17 | Deposits under escrow agreements shall be cash, negotiable | ||||||
18 | United
States government bonds or negotiable general | ||||||
19 | obligation bonds of the
State of Illinois. Such cash or bonds | ||||||
20 | shall be deposited in
escrow with any State or National Bank or | ||||||
21 | Trust Company having trust
authority in the State of Illinois.
| ||||||
22 | Upon the approval of the sworn application and financial | ||||||
23 | statement,
security, indemnity or bond or amount of insurance, | ||||||
24 | filed, furnished or
carried, as the case may be, the Commission | ||||||
25 | shall send to the employer
written notice of its approval | ||||||
26 | thereof. The certificate of compliance
by the employer with the | ||||||
27 | provisions of subparagraphs (2) and (3) of
paragraph (a) of | ||||||
28 | this Section shall be delivered by the insurance
carrier to the | ||||||
29 | Industrial Commission within five days after the
effective date | ||||||
30 | of the policy so certified. The insurance so certified
shall | ||||||
31 | cover all compensation liability occurring during the time that
| ||||||
32 | the insurance is in effect and no further certificate need be | ||||||
33 | filed in case
such insurance is renewed, extended or otherwise | ||||||
34 | continued by such
carrier. The insurance so certified shall not | ||||||
35 | be cancelled or in the
event that such insurance is not | ||||||
36 | renewed, extended or otherwise
continued, such insurance shall |
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| |||||||
1 | not be terminated until at least 10
days after receipt by the | ||||||
2 | Industrial Commission of notice of the
cancellation or | ||||||
3 | termination of said insurance; provided, however, that
if the | ||||||
4 | employer has secured insurance from another insurance carrier, | ||||||
5 | or
has otherwise secured the payment of compensation in | ||||||
6 | accordance with
this Section, and such insurance or other | ||||||
7 | security becomes effective
prior to the expiration of the 10 | ||||||
8 | days, cancellation or termination may, at
the option of the | ||||||
9 | insurance carrier indicated in such notice, be effective
as of | ||||||
10 | the effective date of such other insurance or security.
| ||||||
11 | (c) Whenever the Commission shall find that any | ||||||
12 | corporation,
company, association, aggregation of individuals, | ||||||
13 | reciprocal or
interinsurers exchange, or other insurer | ||||||
14 | effecting workers' compensation
insurance in this State shall | ||||||
15 | be insolvent, financially unsound, or
unable to fully meet all | ||||||
16 | payments and liabilities assumed or to be
assumed for | ||||||
17 | compensation insurance in this State, or shall practice a
| ||||||
18 | policy of delay or unfairness toward employees in the | ||||||
19 | adjustment,
settlement, or payment of benefits due such | ||||||
20 | employees, the Commission
may after reasonable notice and | ||||||
21 | hearing order and direct that such
corporation, company, | ||||||
22 | association, aggregation of individuals,
reciprocal or | ||||||
23 | interinsurers exchange, or insurer, shall from and after a
date | ||||||
24 | fixed in such order discontinue the writing of any such | ||||||
25 | workers'
compensation insurance in this State. Subject to such | ||||||
26 | modification of
the order as the Commission may later make on | ||||||
27 | review of the order,
as herein provided, it shall thereupon be | ||||||
28 | unlawful for any such
corporation, company, association, | ||||||
29 | aggregation of individuals,
reciprocal or interinsurers | ||||||
30 | exchange, or insurer to effect any workers'
compensation | ||||||
31 | insurance in this State. A copy of the order shall be served
| ||||||
32 | upon the Director of Insurance by registered mail. Whenever the | ||||||
33 | Commission
finds that any service or adjustment company used or | ||||||
34 | employed
by a self-insured employer or by an insurance carrier | ||||||
35 | to process,
adjust, investigate, compromise or otherwise | ||||||
36 | handle claims under this
Act, has practiced or is practicing a |
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| |||||||
1 | policy of delay or unfairness
toward employees in the | ||||||
2 | adjustment, settlement or payment of benefits
due such | ||||||
3 | employees, the Commission may after reasonable notice and
| ||||||
4 | hearing order and direct that such service or adjustment | ||||||
5 | company shall
from and after a date fixed in such order be | ||||||
6 | prohibited from processing,
adjusting, investigating, | ||||||
7 | compromising or otherwise handling claims
under this Act.
| ||||||
8 | Whenever the Commission finds that any self-insured | ||||||
9 | employer has
practiced or is practicing delay or unfairness | ||||||
10 | toward employees in the
adjustment, settlement or payment of | ||||||
11 | benefits due such employees, the
Commission may, after | ||||||
12 | reasonable notice and hearing, order and direct
that after a | ||||||
13 | date fixed in the order such self-insured employer shall be
| ||||||
14 | disqualified to operate as a self-insurer and shall be required | ||||||
15 | to
insure his entire liability to pay compensation in some | ||||||
16 | insurance
carrier authorized, licensed and permitted to do such | ||||||
17 | insurance business
in this State, as provided in subparagraph 3 | ||||||
18 | of paragraph (a) of this
Section.
| ||||||
19 | All orders made by the Commission under this Section shall | ||||||
20 | be subject
to review by the courts, said review to be taken in | ||||||
21 | the same manner and
within the same time as provided by Section | ||||||
22 | 19 of this Act for review of
awards and decisions of the | ||||||
23 | Commission, upon the party seeking the
review filing with the | ||||||
24 | clerk of the court to which said review is taken
a bond in an | ||||||
25 | amount to be fixed and approved by the court to which the
| ||||||
26 | review is taken, conditioned upon the payment of all | ||||||
27 | compensation awarded
against the person taking said review | ||||||
28 | pending a decision thereof and
further conditioned upon such | ||||||
29 | other obligations as the court may impose.
Upon the review the | ||||||
30 | Circuit Court shall have power to review all questions
of fact | ||||||
31 | as well as of law. The penalty hereinafter provided for in this
| ||||||
32 | paragraph shall not attach and shall not begin to run until the | ||||||
33 | final
determination of the order of the Commission.
| ||||||
34 | (d) Upon a finding by the Commission, after reasonable | ||||||
35 | notice and
hearing, of the knowing and wilful failure or | ||||||
36 | refusal of an employer to
comply with
any of the provisions of |
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| |||||||
1 | paragraph (a) of this Section or the failure or
refusal of an | ||||||
2 | employer, service or adjustment company, or an insurance
| ||||||
3 | carrier to comply with any order of the Industrial Commission | ||||||
4 | pursuant to
paragraph (c) of this Section disqualifying him or | ||||||
5 | her to operate as a self
insurer and requiring him or her to | ||||||
6 | insure his or her liability, the
Commission may assess a civil | ||||||
7 | penalty of up to $500 per day for each day of
such failure or | ||||||
8 | refusal after the effective date of this amendatory Act of
| ||||||
9 | 1989. The minimum penalty under this Section shall be the sum | ||||||
10 | of $10,000.
Each day of such failure or refusal shall | ||||||
11 | constitute a separate offense.
The Commission may assess the | ||||||
12 | civil penalty personally and individually
against the | ||||||
13 | corporate officers and directors of a corporate employer, the
| ||||||
14 | partners of an employer partnership, and the members of an | ||||||
15 | employer limited
liability company, after a finding of a | ||||||
16 | knowing and willful refusal or failure
of each such named | ||||||
17 | corporate officer, director, partner, or member to comply
with | ||||||
18 | this Section. The liability for the assessed penalty shall be
| ||||||
19 | against the named employer first, and
if the named employer | ||||||
20 | fails or refuses to pay the penalty to the
Commission within 30 | ||||||
21 | days after the final order of the Commission, then the
named
| ||||||
22 | corporate officers, directors, partners, or members who have | ||||||
23 | been found to have
knowingly and willfully refused or failed to | ||||||
24 | comply with this Section shall be
liable for the unpaid penalty | ||||||
25 | or any unpaid portion of the penalty. All
penalties collected | ||||||
26 | under
this Section shall be deposited in the Industrial | ||||||
27 | Commission Operations Fund.
| ||||||
28 | Upon the failure or refusal of any employer, service or | ||||||
29 | adjustment
company or insurance carrier to comply with the | ||||||
30 | provisions of this Section
and with the orders of the | ||||||
31 | Commission under this Section, or the order of
the court on | ||||||
32 | review after final adjudication, the Commission may bring a
| ||||||
33 | civil action to recover the amount of the penalty in Cook | ||||||
34 | County or in
Sangamon County in which litigation the Commission | ||||||
35 | shall be represented by
the Attorney General. The Commission | ||||||
36 | shall send notice of its finding of
non-compliance and |
| |||||||
| |||||||
1 | assessment of the civil penalty to the Attorney General.
It | ||||||
2 | shall be the duty of the Attorney General within 30 days after | ||||||
3 | receipt
of the notice, to institute prosecutions and promptly | ||||||
4 | prosecute all
reported violations of this Section.
| ||||||
5 | (e) This Act shall not affect or disturb the continuance of | ||||||
6 | any
existing insurance, mutual aid, benefit, or relief | ||||||
7 | association or
department, whether maintained in whole or in | ||||||
8 | part by the employer or
whether maintained by the employees, | ||||||
9 | the payment of benefits of such
association or department being | ||||||
10 | guaranteed by the employer or by some
person, firm or | ||||||
11 | corporation for him or her: Provided, the employer contributes
| ||||||
12 | to such association or department an amount not less than the | ||||||
13 | full
compensation herein provided, exclusive of the cost of the | ||||||
14 | maintenance
of such association or department and without any | ||||||
15 | expense to the
employee. This Act shall not prevent the | ||||||
16 | organization and maintaining
under the insurance laws of this | ||||||
17 | State of any benefit or insurance
company for the purpose of | ||||||
18 | insuring against the compensation provided
for in this Act, the | ||||||
19 | expense of which is maintained by the employer.
This Act shall | ||||||
20 | not prevent the organization or maintaining under the
insurance | ||||||
21 | laws of this State of any voluntary mutual aid, benefit or
| ||||||
22 | relief association among employees for the payment of | ||||||
23 | additional
accident or sick benefits.
| ||||||
24 | (f) No existing insurance, mutual aid, benefit or relief | ||||||
25 | association
or department shall, by reason of anything herein | ||||||
26 | contained, be
authorized to discontinue its operation without | ||||||
27 | first discharging its
obligations to any and all persons | ||||||
28 | carrying insurance in the same or
entitled to relief or | ||||||
29 | benefits therein.
| ||||||
30 | (g) Any contract, oral, written or implied, of employment | ||||||
31 | providing
for relief benefit, or insurance or any other device | ||||||
32 | whereby the
employee is required to pay any premium or premiums | ||||||
33 | for insurance
against the compensation provided for in this Act | ||||||
34 | shall be null and
void. Any employer withholding from the wages | ||||||
35 | of any employee any
amount for the purpose of paying any such | ||||||
36 | premium shall be guilty of a
Class B misdemeanor.
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| |||||||
1 | In the event the employer does not pay the compensation for | ||||||
2 | which he or
she is liable, then an insurance company, | ||||||
3 | association or insurer which may
have insured such employer | ||||||
4 | against such liability shall become primarily
liable to pay to | ||||||
5 | the employee, his or her personal representative or
beneficiary | ||||||
6 | the compensation required by the provisions of this Act to
be | ||||||
7 | paid by such employer. The insurance carrier may be made a | ||||||
8 | party to
the proceedings in which the employer is a party and | ||||||
9 | an award may be
entered jointly against the employer and the | ||||||
10 | insurance carrier.
| ||||||
11 | (h) It shall be unlawful for any employer, insurance | ||||||
12 | company or
service or adjustment company to interfere with, | ||||||
13 | restrain or coerce an
employee in any manner whatsoever in the | ||||||
14 | exercise of the rights or
remedies granted to him or her by | ||||||
15 | this Act or to discriminate, attempt to
discriminate, or | ||||||
16 | threaten to discriminate against an employee in any way
because | ||||||
17 | of his or her exercise of the rights or remedies granted to
him | ||||||
18 | or her by this Act.
| ||||||
19 | It shall be unlawful for any employer, individually or | ||||||
20 | through any
insurance company or service or adjustment company, | ||||||
21 | to discharge or to
threaten to discharge, or to refuse to | ||||||
22 | rehire or recall to active
service in a suitable capacity an | ||||||
23 | employee because of the exercise of
his or her rights or | ||||||
24 | remedies granted to him or her by this Act.
| ||||||
25 | (i) If an employer elects to obtain a life insurance policy | ||||||
26 | on his
employees, he may also elect to apply such benefits in | ||||||
27 | satisfaction of all
or a portion of the death benefits payable | ||||||
28 | under this Act, in which case,
the employer's compensation | ||||||
29 | premium shall be reduced accordingly.
| ||||||
30 | (j) Within 45 days of receipt of an initial application or | ||||||
31 | application
to renew self-insurance privileges the | ||||||
32 | Self-Insurers Advisory Board shall
review and submit for | ||||||
33 | approval by the Chairman of the Commission
recommendations of | ||||||
34 | disposition of all initial applications to self-insure
and all | ||||||
35 | applications to renew self-insurance privileges filed by | ||||||
36 | private
self-insurers pursuant to the provisions of this |
| |||||||
| |||||||
1 | Section and Section 4a-9
of this Act. Each private self-insurer | ||||||
2 | shall submit with its initial and
renewal applications the | ||||||
3 | application fee required by Section 4a-4 of this Act.
| ||||||
4 | The Chairman of the Commission shall promptly act upon all | ||||||
5 | initial
applications and applications for renewal in full | ||||||
6 | accordance with the
recommendations of the Board or, should the | ||||||
7 | Chairman disagree with any
recommendation of disposition of the | ||||||
8 | Self-Insurer's Advisory Board, he
shall within 30 days of | ||||||
9 | receipt of such recommendation provide to the Board
in writing | ||||||
10 | the reasons supporting his decision. The Chairman shall also
| ||||||
11 | promptly notify the employer of his decision within 15 days of | ||||||
12 | receipt of
the recommendation of the Board.
| ||||||
13 | If an employer is denied a renewal of self-insurance | ||||||
14 | privileges pursuant
to application it shall retain said | ||||||
15 | privilege for 120 days after receipt of
a notice of | ||||||
16 | cancellation of the privilege from the Chairman of the | ||||||
17 | Commission.
| ||||||
18 | All orders made by the Chairman under this Section shall be | ||||||
19 | subject to
review by the courts, such review to be taken in the | ||||||
20 | same manner and within
the same time as provided by subsection | ||||||
21 | (f) of Section 19 of this Act for
review of awards and | ||||||
22 | decisions of the Commission, upon the party seeking
the review | ||||||
23 | filing with the clerk of the court to which such review is | ||||||
24 | taken
a bond in an amount to be fixed and approved by the court | ||||||
25 | to which the
review is taken, conditioned upon the payment of | ||||||
26 | all compensation awarded
against the person taking such review | ||||||
27 | pending a decision thereof and
further conditioned upon such | ||||||
28 | other obligations as the court may impose.
Upon the review the | ||||||
29 | Circuit Court shall have power to review all questions
of fact | ||||||
30 | as well as of law.
| ||||||
31 | (Source: P.A. 91-375, eff. 1-1-00; 91-757, eff. 1-1-01; 92-324, | ||||||
32 | eff.
8-9-01.)
| ||||||
33 | Section 10. The Workers' Occupational Diseases Act is | ||||||
34 | amended by changing Section 4 as follows:
|
| |||||||
| |||||||
1 | (820 ILCS 310/4) (from Ch. 48, par. 172.39)
| ||||||
2 | Sec. 4. (a) Any employer, including but not limited to | ||||||
3 | general contractors
and their subcontractors, required by the | ||||||
4 | terms of this Act or by
election to pay the compensation | ||||||
5 | provided for in this Act shall:
| ||||||
6 | (1) File with the Commission an application for | ||||||
7 | approval as a
self-insurer which shall include a current | ||||||
8 | financial statement. The
application and financial | ||||||
9 | statement shall be signed and sworn to by the
president or | ||||||
10 | vice-president and secretary or assistant secretary of the
| ||||||
11 | employer if it be a corporation, or by all of the partners | ||||||
12 | if it be a
copartnership, or by the owner if it be neither | ||||||
13 | a copartnership nor a
corporation. An employer may elect to | ||||||
14 | provide and pay compensation as
provided
for in this Act as | ||||||
15 | a member of a group workers' compensation pool under
| ||||||
16 | Article V 3/4 of the Illinois Insurance Code. If an | ||||||
17 | employer becomes a member
of a group workers' compensation | ||||||
18 | pool, the employer shall not be relieved of
any obligations | ||||||
19 | imposed by this Act. A person who knowingly provides false | ||||||
20 | information on an initial or renewal self-insurance | ||||||
21 | application or accompanying financial statement is guilty | ||||||
22 | of a business offense for which a fine not to exceed | ||||||
23 | $50,000 may be imposed.
| ||||||
24 | If the sworn application and financial statement of any | ||||||
25 | such employer
does not satisfy the Commission of the | ||||||
26 | financial ability of the employer
who has filed it, the | ||||||
27 | Commission shall require such employer to:
| ||||||
28 | (2) Furnish security, indemnity or a bond guaranteeing | ||||||
29 | the payment
by the employer of the compensation provided | ||||||
30 | for in this Act, provided
that any such employer who shall | ||||||
31 | have secured his or her liability in
part by excess | ||||||
32 | liability coverage shall be required to furnish to the
| ||||||
33 | Commission security, indemnity or bond guaranteeing his or | ||||||
34 | her payment up
to the amount of the effective limits of the | ||||||
35 | excess coverage in accordance
with the provisions of this | ||||||
36 | paragraph, or
|
| |||||||
| |||||||
1 | (3) Insure his or her entire liability to pay such | ||||||
2 | compensation in some
insurance carrier authorized, | ||||||
3 | licensed or permitted to do such insurance
business in this | ||||||
4 | State. All policies of such insurance carriers
insuring the | ||||||
5 | payment of compensation under this Act shall cover all the
| ||||||
6 | employees and all such employer's compensation liability | ||||||
7 | in all cases in
which the last day of the last exposure to | ||||||
8 | the occupational disease
involved is within the effective | ||||||
9 | period of the policy, anything to the
contrary in the | ||||||
10 | policy notwithstanding. Provided, however, that any
| ||||||
11 | employer may insure his or her compensation liability under | ||||||
12 | this Act
with 2 or more insurance carriers or may insure a | ||||||
13 | part and qualify under
Subsection 1, 2, or 4 for the | ||||||
14 | remainder of his liability to pay such
compensation, | ||||||
15 | subject to the following two provisions:
| ||||||
16 | Firstly, the entire liability of the employer to | ||||||
17 | employees working at
or from one location shall be | ||||||
18 | insured in one such insurance carrier or
shall be | ||||||
19 | self-insured.
| ||||||
20 | Secondly, the employer shall submit evidence | ||||||
21 | satisfactory to the
Commission that his or her entire | ||||||
22 | liability for the compensation provided
for in this Act | ||||||
23 | will be secured.
| ||||||
24 | Any provision in a policy or in any endorsement | ||||||
25 | attached thereto
attempting to limit or modify in any way | ||||||
26 | the liability of the insurance
carrier issuing the same, | ||||||
27 | except as otherwise provided herein, shall be
wholly void.
| ||||||
28 | The insurance or security in force to cover | ||||||
29 | compensation liability
under this Act shall be separate and | ||||||
30 | distinct from the insurance or
security under the "Workers' | ||||||
31 | Compensation Act" and any insurance
contract covering | ||||||
32 | liability under either Act need not cover any
liability | ||||||
33 | under the other. Nothing herein contained shall apply to
| ||||||
34 | policies of excess liability carriage secured by employers | ||||||
35 | who have been
approved by the Commission as self-insurers, | ||||||
36 | or
|
| |||||||
| |||||||
1 | (4) Make some other provision, satisfactory to the | ||||||
2 | Commission, for
the securing of the payment of compensation | ||||||
3 | provided for in this Act,
and
| ||||||
4 | (5) Upon becoming subject to this Act and thereafter as | ||||||
5 | often as the
Commission may in writing demand, file with | ||||||
6 | the Commission in form
prescribed by it evidence of his or | ||||||
7 | her compliance with the provision
of this Section.
| ||||||
8 | (a-1) Regardless of its state of domicile or its principal | ||||||
9 | place of
business, an employer shall make payments to its | ||||||
10 | insurance carrier or group
self-insurance fund, where | ||||||
11 | applicable, based upon the premium rates of the
situs where the | ||||||
12 | work or project is located in Illinois if:
| ||||||
13 | (A) the employer is engaged primarily in the building | ||||||
14 | and
construction industry; and
| ||||||
15 | (B) subdivision (a)(3) of this Section applies to the | ||||||
16 | employer or
the employer is a member of a group | ||||||
17 | self-insurance plan as defined in
subsection (1) of Section | ||||||
18 | 4a.
| ||||||
19 | The Industrial Commission shall impose a penalty upon an | ||||||
20 | employer
for violation of this subsection (a-1) if:
| ||||||
21 | (i) the employer is given an opportunity at a hearing | ||||||
22 | to present
evidence of its compliance with this subsection | ||||||
23 | (a-1); and
| ||||||
24 | (ii) after the hearing, the Commission finds that the | ||||||
25 | employer
failed to make payments upon the premium rates of | ||||||
26 | the situs where the work or
project is located in Illinois.
| ||||||
27 | The penalty shall not exceed $1,000 for each day of work | ||||||
28 | for which
the employer failed to make payments upon the premium | ||||||
29 | rates of the situs where
the
work or project is located in | ||||||
30 | Illinois, but the total penalty shall not exceed
$50,000 for | ||||||
31 | each project or each contract under which the work was
| ||||||
32 | performed.
| ||||||
33 | Any penalty under
this subsection (a-1) must be imposed not | ||||||
34 | later than one year after the
expiration of the applicable | ||||||
35 | limitation period specified in subsection (c) of
Section 6 of | ||||||
36 | this Act. Penalties imposed under this subsection (a-1) shall |
| |||||||
| |||||||
1 | be
deposited into the Industrial Commission Operations Fund | ||||||
2 | created under Section
4 of the Workers' Compensation Act.
| ||||||
3 | (b) The sworn application and financial statement, or | ||||||
4 | security,
indemnity or bond, or amount of insurance, or other | ||||||
5 | provisions, filed,
furnished, carried, or made by the employer, | ||||||
6 | as the case may be, shall
be subject to the approval of the | ||||||
7 | Commission.
| ||||||
8 | Deposits under escrow agreements shall be cash, negotiable | ||||||
9 | United
States government bonds or negotiable general | ||||||
10 | obligation bonds of the
State of Illinois. Such cash or bonds | ||||||
11 | shall be deposited in escrow with
any State or National Bank or | ||||||
12 | Trust Company having trust authority in
the State of Illinois.
| ||||||
13 | Upon the approval of the sworn application and financial | ||||||
14 | statement,
security, indemnity or bond or amount of insurance, | ||||||
15 | filed, furnished, or
carried, as the case may be, the | ||||||
16 | Commission shall send to the employer
written notice of its | ||||||
17 | approval thereof. Said certificate of compliance
by the | ||||||
18 | employer with the provisions of subparagraphs (2) and (3) of
| ||||||
19 | paragraph (a) of this Section shall be delivered by the | ||||||
20 | insurance
carrier to the Industrial Commission within 5 days | ||||||
21 | after the effective
date of the policy so certified. The | ||||||
22 | insurance so certified shall cover
all compensation liability | ||||||
23 | occurring during the time that the
insurance is in effect and | ||||||
24 | no further certificate need be filed in case such
insurance is | ||||||
25 | renewed, extended or otherwise continued by such carrier.
The | ||||||
26 | insurance so certified shall not be cancelled or in the event | ||||||
27 | that
such insurance is not renewed, extended or otherwise | ||||||
28 | continued, such
insurance shall not be terminated until at | ||||||
29 | least 10 days after receipt
by the Industrial Commission of | ||||||
30 | notice of the cancellation or
termination of said insurance; | ||||||
31 | provided, however, that if the employer
has secured insurance | ||||||
32 | from another insurance carrier, or has otherwise
secured the | ||||||
33 | payment of compensation in accordance with this Section, and
| ||||||
34 | such insurance or other security becomes effective prior to the
| ||||||
35 | expiration of said 10 days, cancellation or termination may, at | ||||||
36 | the
option of the insurance carrier indicated in such notice, |
| |||||||
| |||||||
1 | be effective
as of the effective date of such other insurance | ||||||
2 | or security.
| ||||||
3 | (c) Whenever the Commission shall find that any | ||||||
4 | corporation,
company, association, aggregation of individuals, | ||||||
5 | reciprocal or
interinsurers exchange, or other insurer | ||||||
6 | effecting workers' occupational
disease compensation insurance | ||||||
7 | in this State shall be insolvent,
financially unsound, or | ||||||
8 | unable to fully meet all payments and
liabilities assumed or to | ||||||
9 | be assumed for compensation insurance in this
State, or shall | ||||||
10 | practice a policy of delay or unfairness toward
employees in | ||||||
11 | the adjustment, settlement, or payment of benefits due such
| ||||||
12 | employees, the Commission may after reasonable notice and | ||||||
13 | hearing order
and direct that such corporation, company, | ||||||
14 | association, aggregation of
individuals, reciprocal or | ||||||
15 | interinsurers exchange, or insurer, shall
from and after a date | ||||||
16 | fixed in such order discontinue the writing of any
such | ||||||
17 | workers' occupational disease compensation insurance in this | ||||||
18 | State.
It shall thereupon be unlawful for any such corporation, | ||||||
19 | company,
association, aggregation of individuals, reciprocal | ||||||
20 | or interinsurers
exchange, or insurer to effect any workers' | ||||||
21 | occupational disease
compensation insurance in this State. A | ||||||
22 | copy of the order shall be served
upon the Director of | ||||||
23 | Insurance by registered mail. Whenever the
Commission finds | ||||||
24 | that any service or adjustment company used or employed
by a | ||||||
25 | self-insured employer or by an insurance carrier to process,
| ||||||
26 | adjust, investigate, compromise or otherwise handle claims | ||||||
27 | under this
Act, has practiced or is practicing a policy of | ||||||
28 | delay or unfairness
toward employees in the adjustment, | ||||||
29 | settlement or payment of benefits
due such employees, the | ||||||
30 | Commission may after reasonable notice and
hearing order and | ||||||
31 | direct that such service or adjustment company shall
from and | ||||||
32 | after a date fixed in such order be prohibited from processing,
| ||||||
33 | adjusting, investigating, compromising or otherwise handling | ||||||
34 | claims
under this Act.
| ||||||
35 | Whenever the Commission finds that any self-insured | ||||||
36 | employer has
practiced or is practicing delay or unfairness |
| |||||||
| |||||||
1 | toward employees in the
adjustment, settlement or payment of | ||||||
2 | benefits due such employees, the
Commission may after | ||||||
3 | reasonable notice and hearing order and direct that
after a | ||||||
4 | date fixed in the order such self-insured employer shall be
| ||||||
5 | disqualified to operate as a self-insurer and shall be required | ||||||
6 | to
insure his entire liability to pay compensation in some | ||||||
7 | insurance
carrier authorized, licensed and permitted to do such | ||||||
8 | insurance business
in this State as provided in subparagraph | ||||||
9 | (3) of paragraph (a) of this
Section.
| ||||||
10 | All orders made by the Commission under this Section shall | ||||||
11 | be subject
to review by the courts, the review to be taken in | ||||||
12 | the same manner and
within the same time as provided by Section | ||||||
13 | 19 of this Act for review of
awards and decisions of the | ||||||
14 | Commission, upon the party seeking the
review filing with the | ||||||
15 | clerk of the court to which said review is taken
a bond in an | ||||||
16 | amount to be fixed and approved by the court
to which said | ||||||
17 | review is taken, conditioned upon the payment of all
| ||||||
18 | compensation awarded against the person taking the review | ||||||
19 | pending a
decision thereof and further conditioned upon such | ||||||
20 | other obligations as the
court may impose. Upon the review the | ||||||
21 | Circuit Court shall have
power to review all questions of fact | ||||||
22 | as well as of law. The penalty
hereinafter provided for in this | ||||||
23 | paragraph shall not attach and shall
not begin to run until the | ||||||
24 | final determination of the order of the
Commission.
| ||||||
25 | (d) Upon a finding by the Commission, after reasonable | ||||||
26 | notice and
hearing, of the knowing and wilful failure of an | ||||||
27 | employer to comply with
any of the provisions of paragraph (a) | ||||||
28 | of this Section or the failure or
refusal of an employer, | ||||||
29 | service or adjustment company, or insurance carrier
to comply | ||||||
30 | with any order of the Industrial Commission pursuant to | ||||||
31 | paragraph
(c) of this Section the Commission may assess a civil | ||||||
32 | penalty of up to $500
per day for each day of such failure or | ||||||
33 | refusal after the effective date of
this amendatory Act of | ||||||
34 | 1989. Each day of such failure or refusal shall
constitute a | ||||||
35 | separate offense.
| ||||||
36 | Upon the failure or refusal of any employer, service or |
| |||||||
| |||||||
1 | adjustment
company or insurance carrier to comply with the | ||||||
2 | provisions of this Section
and orders of the Commission under | ||||||
3 | this Section, or the order of the court
on review after final | ||||||
4 | adjudication, the Commission may bring a civil action
to | ||||||
5 | recover the amount of the penalty in Cook County or in Sangamon | ||||||
6 | County
in which litigation the Commission shall be represented | ||||||
7 | by the Attorney
General. The Commission shall send notice of | ||||||
8 | its finding of non-compliance
and assessment of the civil | ||||||
9 | penalty to the Attorney General. It
shall be the duty of the | ||||||
10 | Attorney General within 30 days after
receipt of the notice, to | ||||||
11 | institute prosecutions and promptly
prosecute all reported | ||||||
12 | violations of this Section.
| ||||||
13 | (e) This Act shall not affect or disturb the continuance of | ||||||
14 | any
existing insurance, mutual aid, benefit, or relief | ||||||
15 | association or
department, whether maintained in whole or in | ||||||
16 | part by the employer or
whether maintained by the employees, | ||||||
17 | the payment of benefits of such
association or department being | ||||||
18 | guaranteed by the employer or by some
person, firm or | ||||||
19 | corporation for him or her: Provided, the employer contributes
| ||||||
20 | to such association or department an amount not less than the | ||||||
21 | full
compensation herein provided, exclusive of the cost of the | ||||||
22 | maintenance
of such association or department and without any | ||||||
23 | expense to the
employee. This Act shall not prevent the | ||||||
24 | organization and maintaining
under the insurance laws of this | ||||||
25 | State of any benefit or insurance
company for the purpose of | ||||||
26 | insuring against the compensation provided
for in this Act, the | ||||||
27 | expense of which is maintained by the employer.
This Act shall | ||||||
28 | not prevent the organization or maintaining under the
insurance | ||||||
29 | laws of this State of any voluntary mutual aid, benefit or
| ||||||
30 | relief association among employees for the payment of | ||||||
31 | additional
accident or sick benefits.
| ||||||
32 | (f) No existing insurance, mutual aid, benefit or relief | ||||||
33 | association
or department shall, by reason of anything herein | ||||||
34 | contained, be
authorized to discontinue its operation without | ||||||
35 | first discharging its
obligations to any and all persons | ||||||
36 | carrying insurance in the same or
entitled to relief or |
| |||||||
| |||||||
1 | benefits therein.
| ||||||
2 | (g) Any contract, oral, written or implied, of employment | ||||||
3 | providing
for relief benefit, or insurance or any other device | ||||||
4 | whereby the
employee is required to pay any premium or premiums | ||||||
5 | for insurance
against the compensation provided for in this Act | ||||||
6 | shall be null and
void. Any employer withholding from the wages | ||||||
7 | of any employee any
amount for the purpose of paying any such | ||||||
8 | premium shall be guilty of a
Class B misdemeanor.
| ||||||
9 | In the event the employer does not pay the compensation for | ||||||
10 | which he or
she is liable, then an insurance company, | ||||||
11 | association or insurer which may
have insured such employer | ||||||
12 | against such liability shall become primarily
liable to pay to | ||||||
13 | the employee, his personal representative or
beneficiary the | ||||||
14 | compensation required by the provisions of this Act to
be paid | ||||||
15 | by such employer. The insurance carrier may be made a party to
| ||||||
16 | the proceedings in which the employer is a party and an award | ||||||
17 | may be
entered jointly against the employer and the insurance | ||||||
18 | carrier.
| ||||||
19 | (h) It shall be unlawful for any employer, insurance | ||||||
20 | company or
service or adjustment company to interfere with, | ||||||
21 | restrain or coerce an
employee in any manner whatsoever in the | ||||||
22 | exercise of the rights or
remedies granted to him or her by | ||||||
23 | this Act or to discriminate, attempt to
discriminate, or | ||||||
24 | threaten to discriminate against an employee in any way
because | ||||||
25 | of his exercise of the rights or remedies granted to him by | ||||||
26 | this
Act.
| ||||||
27 | It shall be unlawful for any employer, individually or | ||||||
28 | through any
insurance company or service or adjustment company, | ||||||
29 | to discharge or to
threaten to discharge, or to refuse to | ||||||
30 | rehire or recall to active
service in a suitable capacity an | ||||||
31 | employee because of the exercise of
his or her rights or | ||||||
32 | remedies granted to him or her by this Act.
| ||||||
33 | (i) If an employer elects to obtain a life insurance policy | ||||||
34 | on his
employees, he may also elect to apply such benefits in | ||||||
35 | satisfaction of all
or a portion of the death benefits payable | ||||||
36 | under this Act, in which case,
the employer's premium for |
| |||||||
| |||||||
1 | coverage for benefits under this Act shall be
reduced | ||||||
2 | accordingly.
| ||||||
3 | (Source: P.A. 90-109, eff. 1-1-98; 91-375, eff. 1-1-00; 91-757, | ||||||
4 | eff. 1-1-01.)
| ||||||
5 | Section 99. Effective date. This Act takes effect upon | ||||||
6 | becoming law.
|