Illinois Workers' Comp Bill Should Not Apply Retroactively

Articles & Publications

Law360 Expert Analysis

Law360
May 13, 2019

In a recent Law360 Expert Analysis, William R. Irwin shared insights on Illinois Senate Bill 1596 and its potential implications on asbestos related workers' compensation claims against their employees. Below is an excerpt from the May 8 piece.

With the passage of Illinois Senate Bill 1596 and the expected signing of the law by Gov. J.B. Pritzker, Illinois lawmakers are attempting to address perceived injustices associated with a longstanding statute of repose that bars claims of some plaintiffs who have been diagnosed with asbestos-related diseases many years after they were exposed to asbestos during their employment.

Specifically, the law indicates that plaintiffs whose workers' compensation claims against their employers are barred by the statute of repose may bring civil suits against their employers. This creates an exception to the exclusive remedy provision of the workers' compensation system, which typically prevents employees from suing their employers for work-related diseases and injuries.

However, under Illinois Supreme Court precedent, Senate Bill 1596 cannot deprive employers of the workers’ compensation system’s exclusive remedy provision they expected to protect them from claims by past employees. First, rules of statutory interpretation should dictate that the law in force at the time of plaintiffs’ employment apply, leaving the old law in place for nearly all employees who could bring asbestos suits against their employers.

Second, Illinois Supreme Court precedent prevents the Legislature from retroactively stripping away a vested exclusive remedy defense. The Illinois Supreme Court’s Folta decision clearly established that employers had a vested defense with the exclusive remedy provision barring all occupational disease claims related to on-the-job asbestos exposures that were not the result of intentional actions.

Thus, a constitutional application of Senate Bill 1596 can only be prospective in nature, which effectively should prevent past employees from bringing civil suits against their employers for asbestos-related diseases.

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Mr. Irwin’s Chicago-based practice focused on products and premises liability claims associated with asbestos give him a great perspective on this potential new law and its implications.