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Governor Pritzker has signed Illinois SB 1596 into law as Public Act 101-0006.

Effective immediately, Public Act 101-0006 amends the Illinois Workers’ Compensation Act and the Workers’ Occupational Diseases Act to allow employees to sue their Illinois employer in civil tort actions for a latent injury that manifests more than 25 years after occupational exposure, creating a special exception to the traditional exclusive remedy provision that has been a part of the workers compensation system of Illinois for more than 80 years.

Earlier this Spring, the Plaintiffs’ Bar introduced legislation in both the Illinois House and Senate (SB 1596) to override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015), where the Court held that the Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy to Illinois employees who suffered latent injuries such as mesothelioma. The proponent’s reasoning was that section 6(c) of the Workers’ Occupational Diseases Act bars a worker’s right to file an application for compensation for a disease that may take 30 to 40 years to manifest. That section provides that, “[i]n cases of disability caused by exposure to *** asbestos, unless application for compensation is filed with the Commission within 25 years after the employee was so exposed, the right to file such application shall be barred.” 820 ILCS 310/6(c) (West 2010); see also 820 ILCS 305/6(d) (West 2010) (analogous 25-year limitation period under the Workers’ Compensation Act).

The rationale for the exclusive remedy provisions of the Illinois Workers’ Compensation Act and the Workers’ Occupational Diseases Act was that the Acts impose liability without fault upon the employer and, in return, prohibit common lawsuits by employees against the employer. The exclusive remedy provision found in the Acts is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, the employer is relieved of the prospect of large damage verdicts.

An appropriate alternative to achieve the legislative goal of recovery for the injured employee would have been to lengthen the statute of repose period for latent injury claims, and keep the worker’s recovery in the longstanding system of Illinois worker’s compensation. That is not what Public Act 101-0006 does, however.  Removing the exclusive jurisdiction of such claims from the Illinois Worker’s Compensation Commission has the unintended consequence of not only creating unlimited liability for Illinois employers in the civil tort system for latent injuries, but has the practical effect of eliminating existing insurance coverage for such claims due to the standard policy exclusion in GL policies that exclude coverage for claims by an employee, and the exclusion in worker’s comp policies that precludes coverage for civil tort actions.

Ed Matushek, on behalf of the Illinois Association of Defense Trial Counsel, testified in opposition to this legislation in the General Assembly which nonetheless voted to approve on straight party votes.   Where do we go from here?  Two major questions arise.

Can the Act Be Applied Retroactively?

The purported goal of this legislation was to aid Illinois workers who suffered from latent injuries who, for instance, had been occupationally exposed to asbestos in the 1960s and early 1970s but were unable to recover from their employer due to the statute of repose enacted in the Worker’s Compensation Act and Occupational Diseases Act.  Public Act 101-0006 states that it is “effective immediately.” The reality is that the majority of claims involving such exposures have already been litigated.  Some plaintiffs’ attorneys may nevertheless attempt to apply Public Act 101-0006 retroactively to pending cases filed before the date this legislation was enacted on May 17, 2019.  This should be attacked as a violation of the due process protections of the Illinois Constitution.

Two recent Illinois Supreme Court cases should preclude the retroactive application of Public Act 101-0006.  In 2009, the Illinois Supreme Court held that legislative amendments to the childhood sex abuse statute of limitations do not apply retroactively to revive previously barred claims, John Doe A. v. Diocese of Dallas, No. 106546, 2009 WL 3063427 (Ill. Sept. 24, 2009)(the new legislation should not be applied because the plaintiff’s cause of action was already time-barred under the limitations period contained in the previous version of the statute, and allowing the lawsuit to go forward would deprive the defendants of a vested right in violation of the due process protections of the Illinois Constitution (Ill. Const. 1970, art. I, §12).  Even more recently, in Perry v. Department of Financial and Professional Regulation, 2018 IL 122349 (2018), the Court clarified the retroactivity analysis of legislation under Illinois law.  If, as here, the amendment does not define the temporal reach of the amended statute, the courts must look to Section 4 of the Statute on Statutes to determine legislative intent, and the Perry court held that statutory changes which are substantive are not to be applied retroactively. There should be no argument that a law which allows or bars a cause of action is substantive rather than procedural, and any attempt to apply this law retroactively should be met with firm opposition.

Other Constitutional Attacks: Is This Special Legislation?

Going forward, consideration should be given to raising a constitutional challenge of Public Act 101-0006 as impermissible special legislation in violation of Article IV of the Illinois Constitution.  The Act has created a special class of injured worker who is entitled to sue in civil court, i.e., those that manifest a disease more than 25 years after exposure, while leaving all other workers who develop the same disease in 25 years or less subject to the restrictions of the worker’s compensation system. This is an irrational difference of situation for workers who suffer the same injury.  This classification confers a special privilege to workers who develop latent injuries after an arbitrary number of years, while leaving others who develop the same injury without a similar remedy.

If you are an Illinois employer who now finds itself subject to employee claims in the tort system, please contact us if we may be of assistance on these issues.