| ||||
Public Act 101-0006 | ||||
| ||||
| ||||
AN ACT concerning employment.
| ||||
Be it enacted by the People of the State of Illinois,
| ||||
represented in the General Assembly:
| ||||
Section 5. The Workers' Compensation Act is amended by | ||||
changing Sections 5 and 11 and by adding Section 1.2 as | ||||
follows: | ||||
(820 ILCS 305/1.2 new) | ||||
Sec. 1.2. Permitted civil actions. Subsection (a) of | ||||
Section 5 and Section 11 do not apply to any injury or death | ||||
sustained by an employee as to which the recovery of | ||||
compensation benefits under this Act would be precluded due to | ||||
the operation of any period of repose or repose provision. As | ||||
to any such injury or death, the employee, the employee's | ||||
heirs, and any person having standing under the law to bring a | ||||
civil action at law, including an action for wrongful death and | ||||
an action pursuant to Section 27-6 of the Probate Act of 1975, | ||||
has the nonwaivable right to bring such an action against any | ||||
employer or employers.
| ||||
(820 ILCS 305/5) (from Ch. 48, par. 138.5)
| ||||
Sec. 5. Damages; minors; third-party liability. | ||||
(a) Except as provided in Section 1.2, no No common law or | ||||
statutory right to recover damages from the
employer, his |
insurer, his broker, any service organization that is wholly | ||
owned by the
employer, his insurer or his broker and that | ||
provides safety service, advice or
recommendations for the | ||
employer or the agents or employees of any of them
for injury | ||
or death sustained by any employee while engaged in the line of
| ||
his duty as such employee, other than the compensation herein | ||
provided, is
available to any employee who is covered by the | ||
provisions of this Act, to
any one wholly or partially | ||
dependent upon him, the legal representatives
of his estate, or | ||
any one otherwise entitled to recover damages for such
injury.
| ||
However, in any action now pending or hereafter begun to | ||
enforce a
common law or statutory right to recover damages for | ||
negligently causing
the injury or death of any employee it is | ||
not necessary to allege in the
complaint that either the | ||
employee or the employer or both were not
governed by the | ||
provisions of this Act or of any similar Act in force in
this | ||
or any other State.
| ||
Any illegally employed minor or his legal representatives | ||
shall, except
as hereinafter provided, have the right within 6 | ||
months after the time of
injury or death, or within 6 months | ||
after the appointment of a legal representative,
whichever | ||
shall be later, to file with the Commission a rejection of his
| ||
right to the benefits under this Act, in which case such | ||
illegally employed
minor or his legal representatives shall | ||
have the right to pursue his or
their common law or statutory | ||
remedies to recover damages for such injury or death.
|
No payment of compensation under this Act shall be made to | ||
an illegally
employed minor, or his legal representatives, | ||
unless such payment and the
waiver of his right to reject the
| ||
benefits of this Act has first
been approved by the Commission | ||
or any member thereof, and if such payment
and the waiver of | ||
his right of rejection
has been so approved such payment is a | ||
bar to a subsequent rejection of the
provisions of this Act.
| ||
(b) Where the injury or death for which compensation is | ||
payable under
this Act was caused under circumstances creating | ||
a legal liability for
damages on the part of some person other | ||
than his employer to pay damages,
then legal proceedings may be | ||
taken against such other person to recover
damages | ||
notwithstanding such employer's payment of or liability to pay
| ||
compensation under this Act. In such case, however, if the | ||
action against
such other person is brought by the injured | ||
employee or his personal
representative and judgment is | ||
obtained and paid, or settlement is made
with such other | ||
person, either with or without suit, then from the amount
| ||
received by such employee or personal representative there | ||
shall be paid to
the employer the amount of compensation paid | ||
or to be paid by him to such
employee or personal | ||
representative including amounts paid or to be paid
pursuant to | ||
paragraph (a) of Section 8 of this Act.
| ||
Out of any reimbursement received by the employer pursuant | ||
to this
Section the employer shall pay his pro rata share of | ||
all costs and
reasonably necessary expenses in connection with |
such third-party claim,
action or suit and where the services | ||
of an attorney at law of the employee
or dependents have | ||
resulted in or substantially contributed to the
procurement by | ||
suit, settlement or otherwise of the proceeds out of which
the | ||
employer is reimbursed, then, in the absence of other | ||
agreement, the
employer shall pay such attorney 25% of the | ||
gross amount of such
reimbursement.
| ||
If the injured employee or his personal representative | ||
agrees to receive
compensation from the employer or accept from | ||
the employer any payment on
account of such compensation, or to | ||
institute proceedings to recover the
same, the employer may | ||
have or claim a lien upon any award, judgment or
fund out of | ||
which such employee might be compensated from such third party.
| ||
In such actions brought by the employee or his personal | ||
representative,
he shall forthwith notify his employer by | ||
personal service or registered
mail, of such fact and of the | ||
name of the court in which the suit is
brought, filing proof | ||
thereof in the action. The employer may, at any time
thereafter | ||
join in the action upon his motion so that all orders of court
| ||
after hearing and judgment shall be made for his protection. No | ||
release or
settlement of claim for damages by reason of such | ||
injury or death, and no
satisfaction of judgment in such | ||
proceedings shall be valid without the
written consent of both | ||
employer and employee or his personal
representative, except in | ||
the case of the employers, such consent is not
required where | ||
the employer has been fully indemnified or protected by
Court |
order.
| ||
In the event the employee or his personal representative | ||
fails to
institute a proceeding against such third person at | ||
any time prior to 3
months before such action would be barred, | ||
the employer may in his own name
or in the name of the | ||
employee, or his personal representative, commence a
| ||
proceeding against such other person for the recovery of | ||
damages on account
of such injury or death to the employee, and | ||
out of any amount recovered
the employer shall pay over to the | ||
injured employee or his personal
representatives all sums | ||
collected from such other person by judgment or
otherwise in | ||
excess of the amount of such compensation paid or to be paid
| ||
under this Act, including amounts paid or to be paid pursuant | ||
to paragraph
(a) of Section 8 of this Act, and costs, | ||
attorney's fees and reasonable
expenses as may be incurred by | ||
such employer in making such collection or
in enforcing such | ||
liability.
| ||
(Source: P.A. 98-633, eff. 6-5-14.)
| ||
(820 ILCS 305/11) (from Ch. 48, par. 138.11)
| ||
Sec. 11. Measure of responsibility. Except as provided in | ||
Section 1.2, the The compensation herein provided, together | ||
with the
provisions of this Act, shall be the measure of the | ||
responsibility of
any employer engaged in any of the | ||
enterprises or businesses enumerated
in Section 3 of this Act, | ||
or of any employer who is not engaged in any
such enterprises |
or businesses, but who has elected to provide and pay
| ||
compensation for accidental injuries sustained by any employee | ||
arising
out of and in the course of the employment according to | ||
the provisions
of this Act, and whose election to continue | ||
under this Act, has not been
nullified by any action of his | ||
employees as provided for in this Act.
| ||
Accidental injuries incurred while participating in | ||
voluntary recreational
programs including but not limited to | ||
athletic events, parties and picnics
do not arise out of and in | ||
the course of the employment even though the
employer pays some | ||
or all of the cost thereof. This exclusion shall not apply
in | ||
the event that the injured employee was ordered or assigned by | ||
his employer
to participate in the program.
| ||
Notwithstanding any other defense, accidental injuries | ||
incurred while the employee is engaged in the active commission | ||
of and as a proximate result of the active commission of (a) a | ||
forcible felony, (b) aggravated driving under the influence of | ||
alcohol, other drug or drugs, or intoxicating compound or | ||
compounds, or any combination thereof, or (c) reckless homicide | ||
and for which the employee was convicted do not arise out of | ||
and in the course of employment if the commission of that | ||
forcible felony, aggravated driving under the influence, or | ||
reckless homicide caused an accident resulting in the death or | ||
severe injury of another person. If an employee is acquitted of | ||
a forcible felony, aggravated driving under the influence, or | ||
reckless homicide that caused an accident resulting in the |
death or severe injury of another person or if these charges | ||
are dismissed, there shall be no presumption that the employee | ||
is eligible for benefits under this Act. No employee shall be | ||
entitled to additional compensation under Sections 19(k) or | ||
19(l) of this Act or attorney's fees under Section 16 of this | ||
Act when the employee has been charged with a forcible felony, | ||
aggravated driving under the influence, or reckless homicide | ||
that caused an accident resulting in the death or severe injury | ||
of another person and the employer terminates benefits or | ||
refuses to pay benefits to the employee until the termination | ||
of any pending criminal proceedings. | ||
Accidental injuries incurred while participating as a | ||
patient in a drug
or alcohol rehabilitation program do not | ||
arise out of and in the course
of employment even though the | ||
employer pays some or all of the costs thereof. | ||
Any injury to or disease or death of an employee arising | ||
from the administration of a vaccine, including without | ||
limitation smallpox vaccine, to prepare for, or as a response | ||
to, a threatened or potential bioterrorist incident to the | ||
employee as part of a voluntary inoculation program in | ||
connection with the person's employment or in connection with | ||
any governmental program or recommendation for the inoculation | ||
of workers in the employee's occupation, geographical area, or | ||
other category that includes the employee is deemed to arise | ||
out of and in the course of the employment for all purposes | ||
under this Act. This paragraph added by this amendatory Act of |
the 93rd General Assembly is declarative of existing law and is | ||
not a new enactment.
| ||
No compensation shall be payable if (i) the employee's | ||
intoxication is the proximate cause of the employee's | ||
accidental injury or (ii) at the time the employee incurred the | ||
accidental injury, the employee was so intoxicated that the | ||
intoxication constituted a departure from the employment. | ||
Admissible evidence of the concentration of (1) alcohol, (2) | ||
cannabis as defined in the Cannabis Control Act, (3) a | ||
controlled substance listed in the Illinois Controlled | ||
Substances Act, or (4) an intoxicating compound listed in the | ||
Use of Intoxicating Compounds Act in the employee's blood, | ||
breath, or urine at the time the employee incurred the | ||
accidental injury shall be considered in any hearing under this | ||
Act to determine whether the employee was intoxicated at the | ||
time the employee incurred the accidental injuries. If at the | ||
time of the accidental injuries, there was 0.08% or more by | ||
weight of alcohol in the employee's blood, breath, or urine or | ||
if there is any evidence of impairment due to the unlawful or | ||
unauthorized use of (1) cannabis as defined in the Cannabis | ||
Control Act, (2) a controlled substance listed in the Illinois | ||
Controlled Substances Act, or (3) an intoxicating compound | ||
listed in the Use of Intoxicating Compounds Act or if the | ||
employee refuses to submit to testing of blood, breath, or | ||
urine, then there shall be a rebuttable presumption that the | ||
employee was intoxicated and that the intoxication was the |
proximate cause of the employee's injury. The employee may | ||
overcome the rebuttable presumption by the preponderance of the | ||
admissible evidence that the intoxication was not the sole | ||
proximate cause or proximate cause of the accidental injuries. | ||
Percentage by weight of alcohol in the blood shall be based on | ||
grams of alcohol per 100 milliliters of blood. Percentage by | ||
weight of alcohol in the breath shall be based upon grams of | ||
alcohol per 210 liters of breath. Any testing that has not been | ||
performed by an accredited or certified testing laboratory | ||
shall not be admissible in any hearing under this Act to | ||
determine whether the employee was intoxicated at the time the | ||
employee incurred the accidental injury. | ||
All sample collection and testing for alcohol and drugs | ||
under this Section shall be performed in accordance with rules | ||
to be adopted by the Commission. These rules shall ensure: | ||
(1) compliance with the National Labor Relations Act | ||
regarding collective bargaining agreements or regulations | ||
promulgated by the United States Department of | ||
Transportation; | ||
(2) that samples are collected and tested in | ||
conformance with national and State legal and regulatory | ||
standards for the privacy of the individual being tested, | ||
and in a manner reasonably calculated to prevent | ||
substitutions or interference with the collection or | ||
testing of reliable sample; | ||
(3) that split testing procedures are utilized; |
(4) that sample collection is documented, and the | ||
documentation procedures include: | ||
(A) the labeling of samples in a manner so as to | ||
reasonably preclude the probability of erroneous | ||
identification of test result; and | ||
(B) an opportunity for the employee to provide | ||
notification of any information which he or she | ||
considers relevant to the test, including | ||
identification of currently or recently used | ||
prescription or nonprescription drugs and other | ||
relevant medical information; | ||
(5) that sample collection, storage, and | ||
transportation to the place of testing is performed in a | ||
manner so as to reasonably preclude the probability of | ||
sample contamination or adulteration; and | ||
(6) that chemical analyses of blood, urine, breath, or | ||
other bodily substance are performed according to | ||
nationally scientifically accepted analytical methods and | ||
procedures. | ||
The changes to this Section made by Public Act 97-18 apply | ||
only to accidental injuries that occur on or after September 1, | ||
2011. | ||
(Source: P.A. 97-18, eff. 6-28-11; 97-276, eff. 8-8-11; 97-813, | ||
eff. 7-13-12.)
| ||
Section 10. The Workers' Occupational Diseases Act is |
amended by changing Sections 5 and 11 and by adding Section 1.1 | ||
as follows: | ||
(820 ILCS 310/1.1 new) | ||
Sec. 1.1. Permitted civil actions. Subsection (a) of | ||
Section 5 and Section 11 do not apply to any injury or death | ||
resulting from an occupational disease as to which the recovery | ||
of compensation benefits under this Act would be precluded due | ||
to the operation of any period of repose or repose provision. | ||
As to any such occupational disease, the employee, the | ||
employee's heirs, and any person having standing under the law | ||
to bring a civil action at law, including an action for | ||
wrongful death and an action pursuant to Section 27-6 of the | ||
Probate Act of 1975, has the nonwaivable right to bring such an | ||
action against any employer or employers.
| ||
(820 ILCS 310/5) (from Ch. 48, par. 172.40)
| ||
(Text of Section WITHOUT the changes made by P.A. 89-7, | ||
which has been held
unconstitutional)
| ||
Sec. 5. Liability inclusive; third-party liability. | ||
(a) Except as provided in Section 1.1, there There is no | ||
common law or statutory right to recover
compensation or | ||
damages from the employer, his insurer, his broker, any
service | ||
organization retained by the employer, his insurer or his | ||
broker
to provide safety service, advice or recommendations for | ||
the employer or
the agents or employees of any of them for or |
on account of any injury
to health, disease, or death | ||
therefrom, other than for the compensation
herein provided or | ||
for damages as provided in Section 3 of this Act.
This Section | ||
shall not affect any right to compensation under the
"Workers' | ||
Compensation Act".
| ||
No compensation is payable under this Act for any condition | ||
of
physical or mental ill-being, disability, disablement, or | ||
death for
which compensation is recoverable on account of | ||
accidental injury under
the "Workers' Compensation Act".
| ||
(b) Where the disablement or death for which compensation | ||
is payable
under this Act was caused under circumstances | ||
creating a legal liability
for damages on the part of some | ||
person other than his employer to pay
damages, then legal | ||
proceedings may be taken against such other person
to recover | ||
damages notwithstanding such employer's payment of or
| ||
liability to pay compensation under this Act. In such case, | ||
however, if
the action against such other person is brought by | ||
the employee with a disability
or his personal representative | ||
and judgment is obtained and paid or
settlement is made with | ||
such other person, either with or without suit,
then from the | ||
amount received by such employee or personal
representative | ||
there shall be paid to the employer the amount of
compensation | ||
paid or to be paid by him to such employee or personal
| ||
representative, including amounts paid or to be paid pursuant | ||
to
paragraph (a) of Section 8 of this Act.
| ||
Out of any reimbursement received by the employer, pursuant |
to this
Section the employer shall pay his pro rata share of | ||
all costs and
reasonably necessary expenses in connection with | ||
such third party claim,
action or suit, and where the services | ||
of an attorney at law of the
employee or dependents have | ||
resulted in or substantially contributed to
the procurement by | ||
suit, settlement or otherwise of the proceeds out of
which the | ||
employer is reimbursed, then, in the absence of other
| ||
agreement, the employer shall pay such attorney 25% of the | ||
gross amount
of such reimbursement.
| ||
If the employee with a disability or his personal | ||
representative agrees to
receive compensation from the | ||
employer or accept from the employer any
payment on account of | ||
such compensation, or to institute proceedings to
recover the | ||
same, the employer may have or claim a lien upon any award,
| ||
judgment or fund out of which such employee might be | ||
compensated from
such third party.
| ||
In such actions brought by the employee or his personal
| ||
representative, he shall forthwith notify his employer by | ||
personal
service or registered mail, of such fact and of the | ||
name of the court in
which the suit is brought, filing proof | ||
thereof in the action. The
employer may, at any time thereafter | ||
join in the action upon his motion
so that all orders of court | ||
after hearing and judgment shall be made for
his protection. No | ||
release or settlement of claim for damages by reason
of such | ||
disability or death, and no satisfaction of judgment in such
| ||
proceedings, are valid without the written consent of both |
employer and
employee or his personal representative, except in | ||
the case of the
employers, such consent is not required where | ||
the employer has been
fully indemnified or protected by court | ||
order.
| ||
In the event the employee or his personal representative | ||
fails to
institute a proceeding against such third person at | ||
any time prior to 3
months before such action would be barred | ||
at law the employer may in his
own name, or in the name of the | ||
employee or his personal representative,
commence a proceeding | ||
against such other person for the recovery of
damages on | ||
account of such disability or death to the employee, and out
of | ||
any amount recovered the employer shall pay over to the injured
| ||
employee or his personal representative all sums collected from | ||
such
other person by judgment or otherwise in excess of the | ||
amount of such
compensation paid or to be paid under this Act, | ||
including amounts paid
or to be paid pursuant to paragraph (a) | ||
of Section 8 of this Act, and
costs, attorney's fees and | ||
reasonable expenses as may be incurred by
such employer in | ||
making such collection or in enforcing such liability.
| ||
(Source: P.A. 99-143, eff. 7-27-15.)
| ||
(820 ILCS 310/11) (from Ch. 48, par. 172.46)
| ||
Sec. 11. Measure of liability. Except as provided in | ||
Section 1.1, the The compensation herein provided for shall be | ||
the full, complete
and only measure of the liability of the | ||
employer bound by election under
this Act and such employer's |
liability for compensation and medical
benefits under this Act | ||
shall be exclusive and in place of any and all
other civil | ||
liability whatsoever, at common law or otherwise, to any
| ||
employee or his legal representative on account of damage, | ||
disability or
death caused or contributed to by any disease | ||
contracted or sustained in
the course of the employment.
| ||
(Source: Laws 1951, p. 1095.)
| ||
Section 99. Effective date. This Act takes effect upon | ||
becoming law.
|