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Public Act 101-0006


 

Public Act 0006 101ST GENERAL ASSEMBLY

  
  
  

 


 
Public Act 101-0006
 
SB1596 EnrolledLRB101 07912 JLS 52967 b

    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.

Effective Date: 5/17/2019