Full Text of HB5366 101st General Assembly
HB5366 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 HB5366 Introduced , by Rep. Lawrence Walsh, Jr. SYNOPSIS AS INTRODUCED: |
| 820 ILCS 305/4 | from Ch. 48, par. 138.4 |
|
Amends the Workers' Compensation Act. Provides that in addition to other specified prohibitions, an employer may not demote an employee because of his or her exercise of rights under the Act. Effective immediately.
|
| |
| | A BILL FOR |
|
| | | HB5366 | | LRB101 18184 JLS 67626 b |
|
| 1 | | AN ACT concerning employment.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Workers' Compensation Act is amended by | 5 | | changing Section 4 as follows:
| 6 | | (820 ILCS 305/4) (from Ch. 48, par. 138.4)
| 7 | | (Text of Section from P.A. 101-40) | 8 | | Sec. 4. (a) Any employer, including but not limited to | 9 | | general contractors
and their subcontractors, who shall come | 10 | | within the provisions of
Section 3 of this Act, and any other | 11 | | employer who shall elect to provide
and pay the compensation | 12 | | provided for in this Act shall:
| 13 | | (1) File with the Commission annually an application | 14 | | for approval as a
self-insurer which shall include a | 15 | | current financial statement, and
annually, thereafter, an | 16 | | application for renewal of self-insurance, which
shall | 17 | | include a current financial statement. Said
application | 18 | | and financial statement shall be signed and sworn to by the
| 19 | | president or vice president and secretary or assistant | 20 | | secretary of the
employer if it be a corporation, or by all | 21 | | of the partners, if it be a
copartnership, or by the owner | 22 | | if it be neither a copartnership nor a
corporation. All | 23 | | initial applications and all applications for renewal of
|
| | | HB5366 | - 2 - | LRB101 18184 JLS 67626 b |
|
| 1 | | self-insurance must be submitted at least 60 days prior to | 2 | | the requested
effective date of self-insurance. An | 3 | | employer may elect to provide and pay
compensation as | 4 | | provided
for in this Act as a member of a group workers' | 5 | | compensation pool under Article
V 3/4 of the Illinois | 6 | | Insurance Code. If an employer becomes a member of a
group | 7 | | workers' compensation pool, the employer shall not be | 8 | | relieved of any
obligations imposed by this Act.
| 9 | | If the sworn application and financial statement of any | 10 | | such employer
does not satisfy the Commission of the | 11 | | financial ability of the employer
who has filed it, the | 12 | | Commission shall require such employer to,
| 13 | | (2) Furnish security, indemnity or a bond guaranteeing | 14 | | the payment
by the employer of the compensation provided | 15 | | for in this Act, provided
that any such employer whose | 16 | | application and financial statement shall
not have | 17 | | satisfied the commission of his or her financial ability | 18 | | and
who shall have secured his liability in part by excess | 19 | | liability insurance
shall be required to furnish to the | 20 | | Commission security, indemnity or bond
guaranteeing his or | 21 | | her payment up to the effective limits of the excess
| 22 | | coverage, or
| 23 | | (3) Insure his entire liability to pay such | 24 | | compensation in some
insurance carrier authorized, | 25 | | licensed, or permitted to do such
insurance business in | 26 | | this State. Every policy of an insurance carrier,
insuring |
| | | HB5366 | - 3 - | LRB101 18184 JLS 67626 b |
|
| 1 | | the payment of compensation under this Act shall cover all | 2 | | the
employees and the entire compensation liability of the | 3 | | insured:
Provided, however, that any employer may insure | 4 | | his or her compensation
liability with 2 or more insurance | 5 | | carriers or may insure a part and
qualify under subsection | 6 | | 1, 2, or 4 for the remainder of his or her
liability to pay | 7 | | such compensation, subject to the following two | 8 | | provisions:
| 9 | | Firstly, the entire compensation liability of the | 10 | | employer to
employees working at or from one location | 11 | | shall be insured in one such
insurance carrier or shall | 12 | | be self-insured, and
| 13 | | Secondly, the employer shall submit evidence | 14 | | satisfactorily to the
Commission that his or her entire | 15 | | liability for the compensation provided
for in this Act | 16 | | will be secured. Any provisions in any policy, or in | 17 | | any
endorsement attached thereto, attempting to limit | 18 | | or modify in any way,
the liability of the insurance | 19 | | carriers issuing the same except as
otherwise provided | 20 | | herein shall be wholly void.
| 21 | | Nothing herein contained shall apply to policies of | 22 | | excess liability
carriage secured by employers who have | 23 | | been approved by the Commission
as self-insurers, or
| 24 | | (4) Make some other provision, satisfactory to the | 25 | | Commission, for
the securing of the payment of compensation | 26 | | provided for in this Act,
and
|
| | | HB5366 | - 4 - | LRB101 18184 JLS 67626 b |
|
| 1 | | (5) Upon becoming subject to this Act and thereafter as | 2 | | often as the
Commission may in writing demand, file with | 3 | | the Commission in form prescribed
by it evidence of his or | 4 | | her compliance with the provision of this Section.
| 5 | | (a-1) Regardless of its state of domicile or its principal | 6 | | place of
business, an employer shall make payments to its | 7 | | insurance carrier or group
self-insurance fund, where | 8 | | applicable, based upon the premium rates of the
situs where the | 9 | | work or project is located in Illinois if:
| 10 | | (A) the employer is engaged primarily in the building | 11 | | and
construction industry; and
| 12 | | (B) subdivision (a)(3) of this Section applies to the | 13 | | employer or
the employer is a member of a group | 14 | | self-insurance plan as defined in
subsection (1) of Section | 15 | | 4a.
| 16 | | The Illinois Workers' Compensation Commission shall impose | 17 | | a penalty upon an employer
for violation of this subsection | 18 | | (a-1) if:
| 19 | | (i) the employer is given an opportunity at a hearing | 20 | | to present
evidence of its compliance with this subsection | 21 | | (a-1); and
| 22 | | (ii) after the hearing, the Commission finds that the | 23 | | employer
failed to make payments upon the premium rates of | 24 | | the situs where the work or
project is located in Illinois.
| 25 | | The penalty shall not exceed $1,000 for each day of work | 26 | | for which
the employer failed to make payments upon the premium |
| | | HB5366 | - 5 - | LRB101 18184 JLS 67626 b |
|
| 1 | | rates of the situs where
the
work or project is located in | 2 | | Illinois, but the total penalty shall not exceed
$50,000 for | 3 | | each project or each contract under which the work was
| 4 | | performed.
| 5 | | Any penalty under this subsection (a-1) must be imposed not | 6 | | later
than one year after the expiration of the applicable | 7 | | limitation period
specified in subsection (d) of Section 6 of | 8 | | this Act. Penalties imposed under
this subsection (a-1) shall | 9 | | be deposited into the Illinois Workers' Compensation | 10 | | Commission
Operations Fund, a special fund that is created in | 11 | | the State treasury. Subject
to appropriation, moneys in the | 12 | | Fund shall be used solely for the operations
of the Illinois | 13 | | Workers' Compensation Commission, the salaries and benefits of | 14 | | the Self-Insurers Advisory Board employees, the operating | 15 | | costs of the Self-Insurers Advisory Board, and by the | 16 | | Department of Insurance for the purposes authorized in | 17 | | subsection (c) of Section 25.5 of this Act.
| 18 | | (a-2) Every Employee Leasing Company (ELC), as defined in | 19 | | Section 15 of the Employee Leasing Company Act, shall at a | 20 | | minimum provide the following information to the Commission or | 21 | | any entity designated by the Commission regarding each workers' | 22 | | compensation insurance policy issued to the ELC: | 23 | | (1) Any client company of the ELC listed as an | 24 | | additional named insured. | 25 | | (2) Any informational schedule attached to the master | 26 | | policy that identifies any individual client company's |
| | | HB5366 | - 6 - | LRB101 18184 JLS 67626 b |
|
| 1 | | name, FEIN, and job location. | 2 | | (3) Any certificate of insurance coverage document | 3 | | issued to a client company specifying its rights and | 4 | | obligations under the master policy that establishes both | 5 | | the identity and status of the client, as well as the dates | 6 | | of inception and termination of coverage, if applicable. | 7 | | (b) The sworn application and financial statement, or | 8 | | security,
indemnity or bond, or amount of insurance, or other | 9 | | provisions, filed,
furnished, carried, or made by the employer, | 10 | | as the case may be, shall
be subject to the approval of the | 11 | | Commission.
| 12 | | Deposits under escrow agreements shall be cash, negotiable | 13 | | United
States government bonds or negotiable general | 14 | | obligation bonds of the
State of Illinois. Such cash or bonds | 15 | | shall be deposited in
escrow with any State or National Bank or | 16 | | Trust Company having trust
authority in the State of Illinois.
| 17 | | Upon the approval of the sworn application and financial | 18 | | statement,
security, indemnity or bond or amount of insurance, | 19 | | filed, furnished or
carried, as the case may be, the Commission | 20 | | shall send to the employer
written notice of its approval | 21 | | thereof. The certificate of compliance
by the employer with the | 22 | | provisions of subparagraphs (2) and (3) of
paragraph (a) of | 23 | | this Section shall be delivered by the insurance
carrier to the | 24 | | Illinois Workers' Compensation Commission within five days | 25 | | after the
effective date of the policy so certified. The | 26 | | insurance so certified
shall cover all compensation liability |
| | | HB5366 | - 7 - | LRB101 18184 JLS 67626 b |
|
| 1 | | occurring during the time that
the insurance is in effect and | 2 | | no further certificate need be filed in case
such insurance is | 3 | | renewed, extended or otherwise continued by such
carrier. The | 4 | | insurance so certified shall not be cancelled or in the
event | 5 | | that such insurance is not renewed, extended or otherwise
| 6 | | continued, such insurance shall not be terminated until at | 7 | | least 10
days after receipt by the Illinois Workers' | 8 | | Compensation Commission of notice of the
cancellation or | 9 | | termination of said insurance; provided, however, that
if the | 10 | | employer has secured insurance from another insurance carrier, | 11 | | or
has otherwise secured the payment of compensation in | 12 | | accordance with
this Section, and such insurance or other | 13 | | security becomes effective
prior to the expiration of the 10 | 14 | | days, cancellation or termination may, at
the option of the | 15 | | insurance carrier indicated in such notice, be effective
as of | 16 | | the effective date of such other insurance or security.
| 17 | | (c) Whenever the Commission shall find that any | 18 | | corporation,
company, association, aggregation of individuals, | 19 | | reciprocal or
interinsurers exchange, or other insurer | 20 | | effecting workers' compensation
insurance in this State shall | 21 | | be insolvent, financially unsound, or
unable to fully meet all | 22 | | payments and liabilities assumed or to be
assumed for | 23 | | compensation insurance in this State, or shall practice a
| 24 | | policy of delay or unfairness toward employees in the | 25 | | adjustment,
settlement, or payment of benefits due such | 26 | | employees, the Commission
may after reasonable notice and |
| | | HB5366 | - 8 - | LRB101 18184 JLS 67626 b |
|
| 1 | | hearing order and direct that such
corporation, company, | 2 | | association, aggregation of individuals,
reciprocal or | 3 | | interinsurers exchange, or insurer, shall from and after a
date | 4 | | fixed in such order discontinue the writing of any such | 5 | | workers'
compensation insurance in this State. Subject to such | 6 | | modification of
the order as the Commission may later make on | 7 | | review of the order,
as herein provided, it shall thereupon be | 8 | | unlawful for any such
corporation, company, association, | 9 | | aggregation of individuals,
reciprocal or interinsurers | 10 | | exchange, or insurer to effect any workers'
compensation | 11 | | insurance in this State. A copy of the order shall be served
| 12 | | upon the Director of Insurance by registered mail. Whenever the | 13 | | Commission
finds that any service or adjustment company used or | 14 | | employed
by a self-insured employer or by an insurance carrier | 15 | | to process,
adjust, investigate, compromise or otherwise | 16 | | handle claims under this
Act, has practiced or is practicing a | 17 | | policy of delay or unfairness
toward employees in the | 18 | | adjustment, settlement or payment of benefits
due such | 19 | | employees, the Commission may after reasonable notice and
| 20 | | hearing order and direct that such service or adjustment | 21 | | company shall
from and after a date fixed in such order be | 22 | | prohibited from processing,
adjusting, investigating, | 23 | | compromising or otherwise handling claims
under this Act.
| 24 | | Whenever the Commission finds that any self-insured | 25 | | employer has
practiced or is practicing delay or unfairness | 26 | | toward employees in the
adjustment, settlement or payment of |
| | | HB5366 | - 9 - | LRB101 18184 JLS 67626 b |
|
| 1 | | benefits due such employees, the
Commission may, after | 2 | | reasonable notice and hearing, order and direct
that after a | 3 | | date fixed in the order such self-insured employer shall be
| 4 | | disqualified to operate as a self-insurer and shall be required | 5 | | to
insure his entire liability to pay compensation in some | 6 | | insurance
carrier authorized, licensed and permitted to do such | 7 | | insurance business
in this State, as provided in subparagraph 3 | 8 | | of paragraph (a) of this
Section.
| 9 | | All orders made by the Commission under this Section shall | 10 | | be subject
to review by the courts, said review to be taken in | 11 | | the same manner and
within the same time as provided by Section | 12 | | 19 of this Act for review of
awards and decisions of the | 13 | | Commission, upon the party seeking the
review filing with the | 14 | | clerk of the court to which said review is taken
a bond in an | 15 | | amount to be fixed and approved by the court to which the
| 16 | | review is taken, conditioned upon the payment of all | 17 | | compensation awarded
against the person taking said review | 18 | | pending a decision thereof and
further conditioned upon such | 19 | | other obligations as the court may impose.
Upon the review the | 20 | | Circuit Court shall have power to review all questions
of fact | 21 | | as well as of law. The penalty hereinafter provided for in this
| 22 | | paragraph shall not attach and shall not begin to run until the | 23 | | final
determination of the order of the Commission.
| 24 | | (d) Whenever a Commissioner, with due process and after a | 25 | | hearing, determines an employer has knowingly failed to provide | 26 | | coverage as required by paragraph (a) of this Section, the |
| | | HB5366 | - 10 - | LRB101 18184 JLS 67626 b |
|
| 1 | | failure shall be deemed an immediate serious danger to public | 2 | | health, safety, and welfare sufficient to justify service by | 3 | | the Commission of a work-stop order on such employer, requiring | 4 | | the cessation of all business operations of such employer at | 5 | | the place of employment or job site. If a business is declared | 6 | | to be extra hazardous, as defined in Section 3, a Commissioner | 7 | | may issue an emergency work-stop order on such an employer ex | 8 | | parte, prior to holding a hearing, requiring the cessation of | 9 | | all business operations of such employer at the place of | 10 | | employment or job site while awaiting the ruling of the | 11 | | Commission. Whenever a Commissioner issues an emergency | 12 | | work-stop order, the Commission shall issue a notice of | 13 | | emergency work-stop hearing to be posted at the employer's | 14 | | places of employment and job sites. Any law enforcement agency | 15 | | in the State shall, at the request of the Commission, render | 16 | | any assistance necessary to carry out the provisions of this | 17 | | Section, including, but not limited to, preventing any employee | 18 | | of such employer from remaining at a place of employment or job | 19 | | site after a work-stop order has taken effect. Any work-stop | 20 | | order shall be lifted upon proof of insurance as required by | 21 | | this Act. Any orders under this Section are appealable under | 22 | | Section 19(f) to the Circuit Court.
| 23 | | Any individual employer, corporate officer or director of a | 24 | | corporate employer, partner of an employer partnership, or | 25 | | member of an employer limited liability company who knowingly | 26 | | fails to provide coverage as required by paragraph (a) of this |
| | | HB5366 | - 11 - | LRB101 18184 JLS 67626 b |
|
| 1 | | Section is guilty of a Class 4 felony. This provision shall not | 2 | | apply to any corporate officer or director of any | 3 | | publicly-owned corporation. Each day's violation constitutes a | 4 | | separate offense. The State's Attorney of the county in which | 5 | | the violation occurred, or the Attorney General, shall bring | 6 | | such actions in the name of the People of the State of | 7 | | Illinois, or may, in addition to other remedies provided in | 8 | | this Section, bring an action for an injunction to restrain the | 9 | | violation or to enjoin the operation of any such employer.
| 10 | | Any individual employer, corporate officer or director of a | 11 | | corporate employer, partner of an employer partnership, or | 12 | | member of an employer limited liability company who negligently | 13 | | fails to provide coverage as required by paragraph (a) of this | 14 | | Section is guilty of a Class A misdemeanor. This provision | 15 | | shall not apply to any corporate officer or director of any | 16 | | publicly-owned corporation. Each day's violation constitutes a | 17 | | separate offense. The State's Attorney of the county in which | 18 | | the violation occurred, or the Attorney General, shall bring | 19 | | such actions in the name of the People of the State of | 20 | | Illinois.
| 21 | | The criminal penalties in this subsection (d) shall not | 22 | | apply where
there exists a good faith dispute as to the | 23 | | existence of an
employment relationship. Evidence of good faith | 24 | | shall
include, but not be limited to, compliance with the | 25 | | definition
of employee as used by the Internal Revenue Service.
| 26 | | All investigative actions must be acted upon within 90 days |
| | | HB5366 | - 12 - | LRB101 18184 JLS 67626 b |
|
| 1 | | of the issuance of the complaint. Employers who are subject to | 2 | | and who knowingly fail to comply with this Section shall not be | 3 | | entitled to the benefits of this Act during the period of | 4 | | noncompliance, but shall be liable in an action under any other | 5 | | applicable law of this State. In the action, such employer | 6 | | shall not avail himself or herself of the defenses of | 7 | | assumption of risk or negligence or that the injury was due to | 8 | | a co-employee. In the action, proof of the injury shall | 9 | | constitute prima facie evidence of negligence on the part of | 10 | | such employer and the burden shall be on such employer to show | 11 | | freedom of negligence resulting in the injury. The employer | 12 | | shall not join any other defendant in any such civil action. | 13 | | Nothing in this amendatory Act of the 94th General Assembly | 14 | | shall affect the employee's rights under subdivision (a)3 of | 15 | | Section 1 of this Act. Any employer or carrier who makes | 16 | | payments under subdivision (a)3 of Section 1 of this Act shall | 17 | | have a right of reimbursement from the proceeds of any recovery | 18 | | under this Section.
| 19 | | An employee of an uninsured employer, or the employee's | 20 | | dependents in case death ensued, may, instead of proceeding | 21 | | against the employer in a civil action in court, file an | 22 | | application for adjustment of claim with the Commission in | 23 | | accordance with the provisions of this Act and the Commission | 24 | | shall hear and determine the application for adjustment of | 25 | | claim in the manner in which other claims are heard and | 26 | | determined before the Commission.
|
| | | HB5366 | - 13 - | LRB101 18184 JLS 67626 b |
|
| 1 | | All proceedings under this subsection (d) shall be reported | 2 | | on an annual basis to the Workers' Compensation Advisory Board.
| 3 | | An investigator with the Illinois Workers' Compensation | 4 | | Commission Insurance Compliance Division may issue a citation | 5 | | to any employer that is not in compliance with its obligation | 6 | | to have workers' compensation insurance under this Act. The | 7 | | amount of the fine shall be based on the period of time the | 8 | | employer was in non-compliance, but shall be no less than $500, | 9 | | and shall not exceed $10,000. An employer that has been issued | 10 | | a citation shall pay the fine to the Commission and provide to | 11 | | the Commission proof that it obtained the required workers' | 12 | | compensation insurance within 10 days after the citation was | 13 | | issued. This Section does not affect any other obligations this | 14 | | Act imposes on employers. | 15 | | Upon a finding by the Commission, after reasonable notice | 16 | | and
hearing, of the knowing and willful failure or refusal of | 17 | | an employer to
comply with
any of the provisions of paragraph | 18 | | (a) of this Section, the failure or
refusal of an employer, | 19 | | service or adjustment company, or an insurance
carrier to | 20 | | comply with any order of the Illinois Workers' Compensation | 21 | | Commission pursuant to
paragraph (c) of this Section | 22 | | disqualifying him or her to operate as a self
insurer and | 23 | | requiring him or her to insure his or her liability, or the | 24 | | knowing and willful failure of an employer to comply with a | 25 | | citation issued by an investigator with the Illinois Workers' | 26 | | Compensation Commission Insurance Compliance Division, the
|
| | | HB5366 | - 14 - | LRB101 18184 JLS 67626 b |
|
| 1 | | Commission may assess a civil penalty of up to $500 per day for | 2 | | each day of
such failure or refusal after the effective date of | 3 | | this amendatory Act of
1989. The minimum penalty under this | 4 | | Section shall be the sum of $10,000.
Each day of such failure | 5 | | or refusal shall constitute a separate offense.
The Commission | 6 | | may assess the civil penalty personally and individually
| 7 | | against the corporate officers and directors of a corporate | 8 | | employer, the
partners of an employer partnership, and the | 9 | | members of an employer limited
liability company, after a | 10 | | finding of a knowing and willful refusal or failure
of each | 11 | | such named corporate officer, director, partner, or member to | 12 | | comply
with this Section. The liability for the assessed | 13 | | penalty shall be
against the named employer first, and
if the | 14 | | named employer fails or refuses to pay the penalty to the
| 15 | | Commission within 30 days after the final order of the | 16 | | Commission, then the
named
corporate officers, directors, | 17 | | partners, or members who have been found to have
knowingly and | 18 | | willfully refused or failed to comply with this Section shall | 19 | | be
liable for the unpaid penalty or any unpaid portion of the | 20 | | penalty. Upon investigation by the insurance non-compliance | 21 | | unit of the Commission, the Attorney General shall have the | 22 | | authority to prosecute all proceedings to enforce the civil and | 23 | | administrative provisions of this Section before the | 24 | | Commission. The Commission shall promulgate procedural rules | 25 | | for enforcing this Section.
| 26 | | If an employer is found to be in non-compliance with any |
| | | HB5366 | - 15 - | LRB101 18184 JLS 67626 b |
|
| 1 | | provisions of paragraph (a) of this Section more than once, all | 2 | | minimum penalties will double. Therefore, upon the failure or | 3 | | refusal of an employer, service or adjustment company, or | 4 | | insurance carrier to comply with any order of the Commission | 5 | | pursuant to paragraph (c) of this Section disqualifying him or | 6 | | her to operate as a self-insurer and requiring him or her to | 7 | | insure his or her liability, or the knowing and willful failure | 8 | | of an employer to comply with a citation issued by an | 9 | | investigator with the Illinois Workers' Compensation | 10 | | Commission Insurance Compliance Division, the Commission may | 11 | | assess a civil penalty of up to $1,000 per day for each day of | 12 | | such failure or refusal after the effective date of this | 13 | | amendatory Act of the 101st General Assembly. The minimum | 14 | | penalty under this Section shall be the sum of $20,000. In | 15 | | addition, employers with 2 or more violations of any provisions | 16 | | of paragraph (a) of this Section may not self-insure for one | 17 | | year or until all penalties are paid. | 18 | | Upon the failure or refusal of any employer, service or | 19 | | adjustment
company or insurance carrier to comply with the | 20 | | provisions of this Section
and with the orders of the | 21 | | Commission under this Section, or the order of
the court on | 22 | | review after final adjudication, the Commission may bring a
| 23 | | civil action to recover the amount of the penalty in Cook | 24 | | County or in
Sangamon County in which litigation the Commission | 25 | | shall be represented by
the Attorney General. The Commission | 26 | | shall send notice of its finding of
non-compliance and |
| | | HB5366 | - 16 - | LRB101 18184 JLS 67626 b |
|
| 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 | | Any individual employer, corporate officer or director of a | 6 | | corporate employer, partner of an employer partnership, or | 7 | | member of an employer limited liability company who, with the | 8 | | intent to avoid payment of compensation under this Act to an | 9 | | injured employee or the employee's dependents, knowingly | 10 | | transfers, sells, encumbers, assigns, or in any manner disposes | 11 | | of, conceals, secretes, or destroys any property belonging to | 12 | | the employer, officer, director, partner, or member is guilty | 13 | | of a Class 4 felony.
| 14 | | Penalties and fines collected pursuant to this paragraph | 15 | | (d) shall be deposited upon receipt into a special fund which | 16 | | shall be designated the Injured Workers' Benefit Fund, of which | 17 | | the State Treasurer is ex-officio custodian, such special fund | 18 | | to be held and disbursed in accordance with this paragraph (d) | 19 | | for the purposes hereinafter stated in this paragraph (d), upon | 20 | | the final order of the Commission. The Injured Workers' Benefit | 21 | | Fund shall be deposited the same as are State funds and any | 22 | | interest accruing thereon shall be added thereto every 6 | 23 | | months. The Injured Workers' Benefit Fund is subject to audit | 24 | | the same as State funds and accounts and is protected by the | 25 | | general bond given by the State Treasurer. The Injured Workers' | 26 | | Benefit Fund is considered always appropriated for the purposes |
| | | HB5366 | - 17 - | LRB101 18184 JLS 67626 b |
|
| 1 | | of disbursements as provided in this paragraph, and shall be | 2 | | paid out and disbursed as herein provided and shall not at any | 3 | | time be appropriated or diverted to any other use or purpose. | 4 | | Moneys in the Injured Workers' Benefit Fund shall be used only | 5 | | for payment of workers' compensation benefits for injured | 6 | | employees when the employer has failed to provide coverage as | 7 | | determined under this paragraph (d) and has failed to pay the | 8 | | benefits due to the injured employee. The Commission shall have | 9 | | the right to obtain reimbursement from the employer for | 10 | | compensation obligations paid by the Injured Workers' Benefit | 11 | | Fund. Any such amounts obtained shall be deposited by the | 12 | | Commission into the Injured Workers' Benefit Fund. If an | 13 | | injured employee or his or her personal representative receives | 14 | | payment from the Injured Workers' Benefit Fund, the State of | 15 | | Illinois has the same rights under paragraph (b) of Section 5 | 16 | | that the employer who failed to pay the benefits due to the | 17 | | injured employee would have had if the employer had paid those | 18 | | benefits, and any moneys recovered by the State as a result of | 19 | | the State's exercise of its rights under paragraph (b) of | 20 | | Section 5 shall be deposited into the Injured Workers' Benefit | 21 | | Fund. The custodian of the Injured Workers' Benefit Fund shall | 22 | | be joined with the employer as a party respondent in the | 23 | | application for adjustment of claim. After July 1, 2006, the | 24 | | Commission shall make disbursements from the Fund once each | 25 | | year to each eligible claimant. An eligible claimant is an | 26 | | injured worker who has within the previous fiscal year obtained |
| | | HB5366 | - 18 - | LRB101 18184 JLS 67626 b |
|
| 1 | | a final award for benefits from the Commission against the | 2 | | employer and the Injured Workers' Benefit Fund and has notified | 3 | | the Commission within 90 days of receipt of such award. Within | 4 | | a reasonable time after the end of each fiscal year, the | 5 | | Commission shall make a disbursement to each eligible claimant. | 6 | | At the time of disbursement, if there are insufficient moneys | 7 | | in the Fund to pay all claims, each eligible claimant shall | 8 | | receive a pro-rata share, as determined by the Commission, of | 9 | | the available moneys in the Fund for that year. Payment from | 10 | | the Injured Workers' Benefit Fund to an eligible claimant | 11 | | pursuant to this provision shall discharge the obligations of | 12 | | the Injured Workers' Benefit Fund regarding the award entered | 13 | | by the Commission.
| 14 | | (e) This Act shall not affect or disturb the continuance of | 15 | | any
existing insurance, mutual aid, benefit, or relief | 16 | | association or
department, whether maintained in whole or in | 17 | | part by the employer or
whether maintained by the employees, | 18 | | the payment of benefits of such
association or department being | 19 | | guaranteed by the employer or by some
person, firm or | 20 | | corporation for him or her: Provided, the employer contributes
| 21 | | to such association or department an amount not less than the | 22 | | full
compensation herein provided, exclusive of the cost of the | 23 | | maintenance
of such association or department and without any | 24 | | expense to the
employee. This Act shall not prevent the | 25 | | organization and maintaining
under the insurance laws of this | 26 | | State of any benefit or insurance
company for the purpose of |
| | | HB5366 | - 19 - | LRB101 18184 JLS 67626 b |
|
| 1 | | insuring against the compensation provided
for in this Act, the | 2 | | expense of which is maintained by the employer.
This Act shall | 3 | | not prevent the organization or maintaining under the
insurance | 4 | | laws of this State of any voluntary mutual aid, benefit or
| 5 | | relief association among employees for the payment of | 6 | | additional
accident or sick benefits.
| 7 | | (f) No existing insurance, mutual aid, benefit or relief | 8 | | association
or department shall, by reason of anything herein | 9 | | contained, be
authorized to discontinue its operation without | 10 | | first discharging its
obligations to any and all persons | 11 | | carrying insurance in the same or
entitled to relief or | 12 | | benefits therein.
| 13 | | (g) Any contract, oral, written or implied, of employment | 14 | | providing
for relief benefit, or insurance or any other device | 15 | | whereby the
employee is required to pay any premium or premiums | 16 | | for insurance
against the compensation provided for in this Act | 17 | | shall be null and
void. Any employer withholding from the wages | 18 | | of any employee any
amount for the purpose of paying any such | 19 | | premium shall be guilty of a
Class B misdemeanor.
| 20 | | In the event the employer does not pay the compensation for | 21 | | which he or
she is liable, then an insurance company, | 22 | | association or insurer which may
have insured such employer | 23 | | against such liability shall become primarily
liable to pay to | 24 | | the employee, his or her personal representative or
beneficiary | 25 | | the compensation required by the provisions of this Act to
be | 26 | | paid by such employer. The insurance carrier may be made a |
| | | HB5366 | - 20 - | LRB101 18184 JLS 67626 b |
|
| 1 | | party to
the proceedings in which the employer is a party and | 2 | | an award may be
entered jointly against the employer and the | 3 | | insurance carrier.
| 4 | | (h) It shall be unlawful for any employer, insurance | 5 | | company or
service or adjustment company to interfere with, | 6 | | demote, restrain , or coerce an
employee in any manner | 7 | | whatsoever in the exercise of the rights or
remedies granted to | 8 | | him or her by this Act or to discriminate, attempt to
| 9 | | discriminate, or threaten to discriminate against an employee | 10 | | in any way
because of his or her exercise of the rights or | 11 | | remedies granted to
him or her by this Act.
| 12 | | It shall be unlawful for any employer, individually or | 13 | | through any
insurance company or service or adjustment company, | 14 | | to demote, discharge , or to
threaten to discharge, or to refuse | 15 | | to rehire or recall to active
service in a suitable capacity an | 16 | | employee because of the exercise of
his or her rights or | 17 | | remedies granted to him or her by this Act.
| 18 | | (i) If an employer elects to obtain a life insurance policy | 19 | | on his
employees, he may also elect to apply such benefits in | 20 | | satisfaction of all
or a portion of the death benefits payable | 21 | | under this Act, in which case,
the employer's compensation | 22 | | premium shall be reduced accordingly.
| 23 | | (j) Within 45 days of receipt of an initial application or | 24 | | application
to renew self-insurance privileges the | 25 | | Self-Insurers Advisory Board shall
review and submit for | 26 | | approval by the Chairman of the Commission
recommendations of |
| | | HB5366 | - 21 - | LRB101 18184 JLS 67626 b |
|
| 1 | | disposition of all initial applications to self-insure
and all | 2 | | applications to renew self-insurance privileges filed by | 3 | | private
self-insurers pursuant to the provisions of this | 4 | | Section and Section 4a-9
of this Act. Each private self-insurer | 5 | | shall submit with its initial and
renewal applications the | 6 | | application fee required by Section 4a-4 of this Act.
| 7 | | The Chairman of the Commission shall promptly act upon all | 8 | | initial
applications and applications for renewal in full | 9 | | accordance with the
recommendations of the Board or, should the | 10 | | Chairman disagree with any
recommendation of disposition of the | 11 | | Self-Insurer's Advisory Board, he
shall within 30 days of | 12 | | receipt of such recommendation provide to the Board
in writing | 13 | | the reasons supporting his decision. The Chairman shall also
| 14 | | promptly notify the employer of his decision within 15 days of | 15 | | receipt of
the recommendation of the Board.
| 16 | | If an employer is denied a renewal of self-insurance | 17 | | privileges pursuant
to application it shall retain said | 18 | | privilege for 120 days after receipt of
a notice of | 19 | | cancellation of the privilege from the Chairman of the | 20 | | Commission.
| 21 | | All orders made by the Chairman under this Section shall be | 22 | | subject to
review by the courts, such review to be taken in the | 23 | | same manner and within
the same time as provided by subsection | 24 | | (f) of Section 19 of this Act for
review of awards and | 25 | | decisions of the Commission, upon the party seeking
the review | 26 | | filing with the clerk of the court to which such review is |
| | | HB5366 | - 22 - | LRB101 18184 JLS 67626 b |
|
| 1 | | taken
a bond in an amount to be fixed and approved by the court | 2 | | to which the
review is taken, conditioned upon the payment of | 3 | | all compensation awarded
against the person taking such review | 4 | | pending a decision thereof and
further conditioned upon such | 5 | | other obligations as the court may impose.
Upon the review the | 6 | | Circuit Court shall have power to review all questions
of fact | 7 | | as well as of law.
| 8 | | (Source: P.A. 101-40, eff. 1-1-20.)
| 9 | | (Text of Section from P.A. 101-384)
| 10 | | Sec. 4. (a) Any employer, including but not limited to | 11 | | general contractors
and their subcontractors, who shall come | 12 | | within the provisions of
Section 3 of this Act, and any other | 13 | | employer who shall elect to provide
and pay the compensation | 14 | | provided for in this Act shall:
| 15 | | (1) File with the Commission annually an application | 16 | | for approval as a
self-insurer which shall include a | 17 | | current financial statement, and
annually, thereafter, an | 18 | | application for renewal of self-insurance, which
shall | 19 | | include a current financial statement. Said
application | 20 | | and financial statement shall be signed and sworn to by the
| 21 | | president or vice president and secretary or assistant | 22 | | secretary of the
employer if it be a corporation, or by all | 23 | | of the partners, if it be a
copartnership, or by the owner | 24 | | if it be neither a copartnership nor a
corporation. All | 25 | | initial applications and all applications for renewal of
|
| | | HB5366 | - 23 - | LRB101 18184 JLS 67626 b |
|
| 1 | | self-insurance must be submitted at least 60 days prior to | 2 | | the requested
effective date of self-insurance. An | 3 | | employer may elect to provide and pay
compensation as | 4 | | provided
for in this Act as a member of a group workers' | 5 | | compensation pool under Article
V 3/4 of the Illinois | 6 | | Insurance Code. If an employer becomes a member of a
group | 7 | | workers' compensation pool, the employer shall not be | 8 | | relieved of any
obligations imposed by this Act.
| 9 | | If the sworn application and financial statement of any | 10 | | such employer
does not satisfy the Commission of the | 11 | | financial ability of the employer
who has filed it, the | 12 | | Commission shall require such employer to,
| 13 | | (2) Furnish security, indemnity or a bond guaranteeing | 14 | | the payment
by the employer of the compensation provided | 15 | | for in this Act, provided
that any such employer whose | 16 | | application and financial statement shall
not have | 17 | | satisfied the commission of his or her financial ability | 18 | | and
who shall have secured his liability in part by excess | 19 | | liability insurance
shall be required to furnish to the | 20 | | Commission security, indemnity or bond
guaranteeing his or | 21 | | her payment up to the effective limits of the excess
| 22 | | coverage, or
| 23 | | (3) Insure his entire liability to pay such | 24 | | compensation in some
insurance carrier authorized, | 25 | | licensed, or permitted to do such
insurance business in | 26 | | this State. Every policy of an insurance carrier,
insuring |
| | | HB5366 | - 24 - | LRB101 18184 JLS 67626 b |
|
| 1 | | the payment of compensation under this Act shall cover all | 2 | | the
employees and the entire compensation liability of the | 3 | | insured:
Provided, however, that any employer may insure | 4 | | his or her compensation
liability with 2 or more insurance | 5 | | carriers or may insure a part and
qualify under subsection | 6 | | 1, 2, or 4 for the remainder of his or her
liability to pay | 7 | | such compensation, subject to the following two | 8 | | provisions:
| 9 | | Firstly, the entire compensation liability of the | 10 | | employer to
employees working at or from one location | 11 | | shall be insured in one such
insurance carrier or shall | 12 | | be self-insured, and
| 13 | | Secondly, the employer shall submit evidence | 14 | | satisfactorily to the
Commission that his or her entire | 15 | | liability for the compensation provided
for in this Act | 16 | | will be secured. Any provisions in any policy, or in | 17 | | any
endorsement attached thereto, attempting to limit | 18 | | or modify in any way,
the liability of the insurance | 19 | | carriers issuing the same except as
otherwise provided | 20 | | herein shall be wholly void.
| 21 | | Nothing herein contained shall apply to policies of | 22 | | excess liability
carriage secured by employers who have | 23 | | been approved by the Commission
as self-insurers, or
| 24 | | (4) Make some other provision, satisfactory to the | 25 | | Commission, for
the securing of the payment of compensation | 26 | | provided for in this Act,
and
|
| | | HB5366 | - 25 - | LRB101 18184 JLS 67626 b |
|
| 1 | | (5) Upon becoming subject to this Act and thereafter as | 2 | | often as the
Commission may in writing demand, file with | 3 | | the Commission in form prescribed
by it evidence of his or | 4 | | her compliance with the provision of this Section.
| 5 | | (a-1) Regardless of its state of domicile or its principal | 6 | | place of
business, an employer shall make payments to its | 7 | | insurance carrier or group
self-insurance fund, where | 8 | | applicable, based upon the premium rates of the
situs where the | 9 | | work or project is located in Illinois if:
| 10 | | (A) the employer is engaged primarily in the building | 11 | | and
construction industry; and
| 12 | | (B) subdivision (a)(3) of this Section applies to the | 13 | | employer or
the employer is a member of a group | 14 | | self-insurance plan as defined in
subsection (1) of Section | 15 | | 4a.
| 16 | | The Illinois Workers' Compensation Commission shall impose | 17 | | a penalty upon an employer
for violation of this subsection | 18 | | (a-1) if:
| 19 | | (i) the employer is given an opportunity at a hearing | 20 | | to present
evidence of its compliance with this subsection | 21 | | (a-1); and
| 22 | | (ii) after the hearing, the Commission finds that the | 23 | | employer
failed to make payments upon the premium rates of | 24 | | the situs where the work or
project is located in Illinois.
| 25 | | The penalty shall not exceed $1,000 for each day of work | 26 | | for which
the employer failed to make payments upon the premium |
| | | HB5366 | - 26 - | LRB101 18184 JLS 67626 b |
|
| 1 | | rates of the situs where
the
work or project is located in | 2 | | Illinois, but the total penalty shall not exceed
$50,000 for | 3 | | each project or each contract under which the work was
| 4 | | performed.
| 5 | | Any penalty under this subsection (a-1) must be imposed not | 6 | | later
than one year after the expiration of the applicable | 7 | | limitation period
specified in subsection (d) of Section 6 of | 8 | | this Act. Penalties imposed under
this subsection (a-1) shall | 9 | | be deposited into the Illinois Workers' Compensation | 10 | | Commission
Operations Fund, a special fund that is created in | 11 | | the State treasury. Subject
to appropriation, moneys in the | 12 | | Fund shall be used solely for the operations
of the Illinois | 13 | | Workers' Compensation Commission and by the Department of | 14 | | Insurance for the purposes authorized in subsection (c) of | 15 | | Section 25.5 of this Act.
| 16 | | (a-2) Every Employee Leasing Company (ELC), as defined in | 17 | | Section 15 of the Employee Leasing Company Act, shall at a | 18 | | minimum provide the following information to the Commission or | 19 | | any entity designated by the Commission regarding each workers' | 20 | | compensation insurance policy issued to the ELC: | 21 | | (1) Any client company of the ELC listed as an | 22 | | additional named insured. | 23 | | (2) Any informational schedule attached to the master | 24 | | policy that identifies any individual client company's | 25 | | name, FEIN, and job location. | 26 | | (3) Any certificate of insurance coverage document |
| | | HB5366 | - 27 - | LRB101 18184 JLS 67626 b |
|
| 1 | | issued to a client company specifying its rights and | 2 | | obligations under the master policy that establishes both | 3 | | the identity and status of the client, as well as the dates | 4 | | of inception and termination of coverage, if applicable. | 5 | | (b) The sworn application and financial statement, or | 6 | | security,
indemnity or bond, or amount of insurance, or other | 7 | | provisions, filed,
furnished, carried, or made by the employer, | 8 | | as the case may be, shall
be subject to the approval of the | 9 | | Commission.
| 10 | | Deposits under escrow agreements shall be cash, negotiable | 11 | | United
States government bonds or negotiable general | 12 | | obligation bonds of the
State of Illinois. Such cash or bonds | 13 | | shall be deposited in
escrow with any State or National Bank or | 14 | | Trust Company having trust
authority in the State of Illinois.
| 15 | | Upon the approval of the sworn application and financial | 16 | | statement,
security, indemnity or bond or amount of insurance, | 17 | | filed, furnished or
carried, as the case may be, the Commission | 18 | | shall send to the employer
written notice of its approval | 19 | | thereof. The certificate of compliance
by the employer with the | 20 | | provisions of subparagraphs (2) and (3) of
paragraph (a) of | 21 | | this Section shall be delivered by the insurance
carrier to the | 22 | | Illinois Workers' Compensation Commission within five days | 23 | | after the
effective date of the policy so certified. The | 24 | | insurance so certified
shall cover all compensation liability | 25 | | occurring during the time that
the insurance is in effect and | 26 | | no further certificate need be filed in case
such insurance is |
| | | HB5366 | - 28 - | LRB101 18184 JLS 67626 b |
|
| 1 | | renewed, extended or otherwise continued by such
carrier. The | 2 | | insurance so certified shall not be cancelled or in the
event | 3 | | that such insurance is not renewed, extended or otherwise
| 4 | | continued, such insurance shall not be terminated until at | 5 | | least 10
days after receipt by the Illinois Workers' | 6 | | Compensation Commission of notice of the
cancellation or | 7 | | termination of said insurance; provided, however, that
if the | 8 | | employer has secured insurance from another insurance carrier, | 9 | | or
has otherwise secured the payment of compensation in | 10 | | accordance with
this Section, and such insurance or other | 11 | | security becomes effective
prior to the expiration of the 10 | 12 | | days, cancellation or termination may, at
the option of the | 13 | | insurance carrier indicated in such notice, be effective
as of | 14 | | the effective date of such other insurance or security.
| 15 | | (c) Whenever the Commission shall find that any | 16 | | corporation,
company, association, aggregation of individuals, | 17 | | reciprocal or
interinsurers exchange, or other insurer | 18 | | effecting workers' compensation
insurance in this State shall | 19 | | be insolvent, financially unsound, or
unable to fully meet all | 20 | | payments and liabilities assumed or to be
assumed for | 21 | | compensation insurance in this State, or shall practice a
| 22 | | policy of delay or unfairness toward employees in the | 23 | | adjustment,
settlement, or payment of benefits due such | 24 | | employees, the Commission
may after reasonable notice and | 25 | | hearing order and direct that such
corporation, company, | 26 | | association, aggregation of individuals,
reciprocal or |
| | | HB5366 | - 29 - | LRB101 18184 JLS 67626 b |
|
| 1 | | interinsurers exchange, or insurer, shall from and after a
date | 2 | | fixed in such order discontinue the writing of any such | 3 | | workers'
compensation insurance in this State. Subject to such | 4 | | modification of
the order as the Commission may later make on | 5 | | review of the order,
as herein provided, it shall thereupon be | 6 | | unlawful for any such
corporation, company, association, | 7 | | aggregation of individuals,
reciprocal or interinsurers | 8 | | exchange, or insurer to effect any workers'
compensation | 9 | | insurance in this State. A copy of the order shall be served
| 10 | | upon the Director of Insurance by registered mail. Whenever the | 11 | | Commission
finds that any service or adjustment company used or | 12 | | employed
by a self-insured employer or by an insurance carrier | 13 | | to process,
adjust, investigate, compromise or otherwise | 14 | | handle claims under this
Act, has practiced or is practicing a | 15 | | policy of delay or unfairness
toward employees in the | 16 | | adjustment, settlement or payment of benefits
due such | 17 | | employees, the Commission may after reasonable notice and
| 18 | | hearing order and direct that such service or adjustment | 19 | | company shall
from and after a date fixed in such order be | 20 | | prohibited from processing,
adjusting, investigating, | 21 | | compromising or otherwise handling claims
under this Act.
| 22 | | Whenever the Commission finds that any self-insured | 23 | | employer has
practiced or is practicing delay or unfairness | 24 | | toward employees in the
adjustment, settlement or payment of | 25 | | benefits due such employees, the
Commission may, after | 26 | | reasonable notice and hearing, order and direct
that after a |
| | | HB5366 | - 30 - | LRB101 18184 JLS 67626 b |
|
| 1 | | date fixed in the order such self-insured employer shall be
| 2 | | disqualified to operate as a self-insurer and shall be required | 3 | | to
insure his entire liability to pay compensation in some | 4 | | insurance
carrier authorized, licensed and permitted to do such | 5 | | insurance business
in this State, as provided in subparagraph 3 | 6 | | of paragraph (a) of this
Section.
| 7 | | All orders made by the Commission under this Section shall | 8 | | be subject
to review by the courts, said review to be taken in | 9 | | the same manner and
within the same time as provided by Section | 10 | | 19 of this Act for review of
awards and decisions of the | 11 | | Commission, upon the party seeking the
review filing with the | 12 | | clerk of the court to which said review is taken
a bond in an | 13 | | amount to be fixed and approved by the court to which the
| 14 | | review is taken, conditioned upon the payment of all | 15 | | compensation awarded
against the person taking said review | 16 | | pending a decision thereof and
further conditioned upon such | 17 | | other obligations as the court may impose.
Upon the review the | 18 | | Circuit Court shall have power to review all questions
of fact | 19 | | as well as of law. The penalty hereinafter provided for in this
| 20 | | paragraph shall not attach and shall not begin to run until the | 21 | | final
determination of the order of the Commission.
| 22 | | (d) Whenever a panel of 3 Commissioners comprised of one | 23 | | member of the employing class, one representative of a labor | 24 | | organization recognized under the National Labor Relations Act | 25 | | or an attorney who has represented labor organizations or has | 26 | | represented employees in workers' compensation cases, and one |
| | | HB5366 | - 31 - | LRB101 18184 JLS 67626 b |
|
| 1 | | member not identified with either the employing class or a | 2 | | labor organization, with due process and after a hearing, | 3 | | determines an employer has knowingly failed to provide coverage | 4 | | as required by paragraph (a) of this Section, the failure shall | 5 | | be deemed an immediate serious danger to public health, safety, | 6 | | and welfare sufficient to justify service by the Commission of | 7 | | a work-stop order on such employer, requiring the cessation of | 8 | | all business operations of such employer at the place of | 9 | | employment or job site. Any law enforcement agency in the State | 10 | | shall, at the request of the Commission, render any assistance | 11 | | necessary to carry out the provisions of this Section, | 12 | | including, but not limited to, preventing any employee of such | 13 | | employer from remaining at a place of employment or job site | 14 | | after a work-stop order has taken effect. Any work-stop order | 15 | | shall be lifted upon proof of insurance as required by this | 16 | | Act. Any orders under this Section are appealable under Section | 17 | | 19(f) to the Circuit Court.
| 18 | | Any individual employer, corporate officer or director of a | 19 | | corporate employer, partner of an employer partnership, or | 20 | | member of an employer limited liability company who knowingly | 21 | | fails to provide coverage as required by paragraph (a) of this | 22 | | Section is guilty of a Class 4 felony. This provision shall not | 23 | | apply to any corporate officer or director of any | 24 | | publicly-owned corporation. Each day's violation constitutes a | 25 | | separate offense. The State's Attorney of the county in which | 26 | | the violation occurred, or the Attorney General, shall bring |
| | | HB5366 | - 32 - | LRB101 18184 JLS 67626 b |
|
| 1 | | such actions in the name of the People of the State of | 2 | | Illinois, or may, in addition to other remedies provided in | 3 | | this Section, bring an action for an injunction to restrain the | 4 | | violation or to enjoin the operation of any such employer.
| 5 | | Any individual employer, corporate officer or director of a | 6 | | corporate employer, partner of an employer partnership, or | 7 | | member of an employer limited liability company who negligently | 8 | | fails to provide coverage as required by paragraph (a) of this | 9 | | Section is guilty of a Class A misdemeanor. This provision | 10 | | shall not apply to any corporate officer or director of any | 11 | | publicly-owned corporation. Each day's violation constitutes a | 12 | | separate offense. The State's Attorney of the county in which | 13 | | the violation occurred, or the Attorney General, shall bring | 14 | | such actions in the name of the People of the State of | 15 | | Illinois.
| 16 | | The criminal penalties in this subsection (d) shall not | 17 | | apply where
there exists a good faith dispute as to the | 18 | | existence of an
employment relationship. Evidence of good faith | 19 | | shall
include, but not be limited to, compliance with the | 20 | | definition
of employee as used by the Internal Revenue Service.
| 21 | | Employers who are subject to and who knowingly fail to | 22 | | comply with this Section shall not be entitled to the benefits | 23 | | of this Act during the period of noncompliance, but shall be | 24 | | liable in an action under any other applicable law of this | 25 | | State. In the action, such employer shall not avail himself or | 26 | | herself of the defenses of assumption of risk or negligence or |
| | | HB5366 | - 33 - | LRB101 18184 JLS 67626 b |
|
| 1 | | that the injury was due to a co-employee. In the action, proof | 2 | | of the injury shall constitute prima facie evidence of | 3 | | negligence on the part of such employer and the burden shall be | 4 | | on such employer to show freedom of negligence resulting in the | 5 | | injury. The employer shall not join any other defendant in any | 6 | | such civil action. Nothing in this amendatory Act of the 94th | 7 | | General Assembly shall affect the employee's rights under | 8 | | subdivision (a)3 of Section 1 of this Act. Any employer or | 9 | | carrier who makes payments under subdivision (a)3 of Section 1 | 10 | | of this Act shall have a right of reimbursement from the | 11 | | proceeds of any recovery under this Section.
| 12 | | An employee of an uninsured employer, or the employee's | 13 | | dependents in case death ensued, may, instead of proceeding | 14 | | against the employer in a civil action in court, file an | 15 | | application for adjustment of claim with the Commission in | 16 | | accordance with the provisions of this Act and the Commission | 17 | | shall hear and determine the application for adjustment of | 18 | | claim in the manner in which other claims are heard and | 19 | | determined before the Commission.
| 20 | | All proceedings under this subsection (d) shall be reported | 21 | | on an annual basis to the Workers' Compensation Advisory Board.
| 22 | | An investigator with the Illinois Workers' Compensation | 23 | | Commission Insurance Compliance Division may issue a citation | 24 | | to any employer that is not in compliance with its obligation | 25 | | to have workers' compensation insurance under this Act. The | 26 | | amount of the fine shall be based on the period of time the |
| | | HB5366 | - 34 - | LRB101 18184 JLS 67626 b |
|
| 1 | | employer was in non-compliance, but shall be no less than $500, | 2 | | and shall not exceed $2,500. An employer that has been issued a | 3 | | citation shall pay the fine to the Commission and provide to | 4 | | the Commission proof that it obtained the required workers' | 5 | | compensation insurance within 10 days after the citation was | 6 | | issued. This Section does not affect any other obligations this | 7 | | Act imposes on employers. | 8 | | Upon a finding by the Commission, after reasonable notice | 9 | | and
hearing, of the knowing and wilful failure or refusal of an | 10 | | employer to
comply with
any of the provisions of paragraph (a) | 11 | | of this Section, the failure or
refusal of an employer, service | 12 | | or adjustment company, or an insurance
carrier to comply with | 13 | | any order of the Illinois Workers' Compensation Commission | 14 | | pursuant to
paragraph (c) of this Section disqualifying him or | 15 | | her to operate as a self
insurer and requiring him or her to | 16 | | insure his or her liability, or the knowing and willful failure | 17 | | of an employer to comply with a citation issued by an | 18 | | investigator with the Illinois Workers' Compensation | 19 | | Commission Insurance Compliance Division, the
Commission may | 20 | | assess a civil penalty of up to $500 per day for each day of
| 21 | | such failure or refusal after the effective date of this | 22 | | amendatory Act of
1989. The minimum penalty under this Section | 23 | | shall be the sum of $10,000.
Each day of such failure or | 24 | | refusal shall constitute a separate offense.
The Commission may | 25 | | assess the civil penalty personally and individually
against | 26 | | the corporate officers and directors of a corporate employer, |
| | | HB5366 | - 35 - | LRB101 18184 JLS 67626 b |
|
| 1 | | the
partners of an employer partnership, and the members of an | 2 | | employer limited
liability company, after a finding of a | 3 | | knowing and willful refusal or failure
of each such named | 4 | | corporate officer, director, partner, or member to comply
with | 5 | | this Section. The liability for the assessed penalty shall be
| 6 | | against the named employer first, and
if the named employer | 7 | | fails or refuses to pay the penalty to the
Commission within 30 | 8 | | days after the final order of the Commission, then the
named
| 9 | | corporate officers, directors, partners, or members who have | 10 | | been found to have
knowingly and willfully refused or failed to | 11 | | comply with this Section shall be
liable for the unpaid penalty | 12 | | or any unpaid portion of the penalty. Upon investigation by the | 13 | | insurance non-compliance unit of the Commission, the Attorney | 14 | | General shall have the authority to prosecute all proceedings | 15 | | to enforce the civil and administrative provisions of this | 16 | | Section before the Commission. The Commission shall promulgate | 17 | | procedural rules for enforcing this Section.
| 18 | | Upon the failure or refusal of any employer, service or | 19 | | adjustment
company or insurance carrier to comply with the | 20 | | provisions of this Section
and with the orders of the | 21 | | Commission under this Section, or the order of
the court on | 22 | | review after final adjudication, the Commission may bring a
| 23 | | civil action to recover the amount of the penalty in Cook | 24 | | County or in
Sangamon County in which litigation the Commission | 25 | | shall be represented by
the Attorney General. The Commission | 26 | | shall send notice of its finding of
non-compliance and |
| | | HB5366 | - 36 - | LRB101 18184 JLS 67626 b |
|
| 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 | | Any individual employer, corporate officer or director of a | 6 | | corporate employer, partner of an employer partnership, or | 7 | | member of an employer limited liability company who, with the | 8 | | intent to avoid payment of compensation under this Act to an | 9 | | injured employee or the employee's dependents, knowingly | 10 | | transfers, sells, encumbers, assigns, or in any manner disposes | 11 | | of, conceals, secretes, or destroys any property belonging to | 12 | | the employer, officer, director, partner, or member is guilty | 13 | | of a Class 4 felony.
| 14 | | Penalties and fines collected pursuant to this paragraph | 15 | | (d) shall be deposited upon receipt into a special fund which | 16 | | shall be designated the Injured Workers' Benefit Fund, of which | 17 | | the State Treasurer is ex-officio custodian, such special fund | 18 | | to be held and disbursed in accordance with this paragraph (d) | 19 | | for the purposes hereinafter stated in this paragraph (d), upon | 20 | | the final order of the Commission. The Injured Workers' Benefit | 21 | | Fund shall be deposited the same as are State funds and any | 22 | | interest accruing thereon shall be added thereto every 6 | 23 | | months. The Injured Workers' Benefit Fund is subject to audit | 24 | | the same as State funds and accounts and is protected by the | 25 | | general bond given by the State Treasurer. The Injured Workers' | 26 | | Benefit Fund is considered always appropriated for the purposes |
| | | HB5366 | - 37 - | LRB101 18184 JLS 67626 b |
|
| 1 | | of disbursements as provided in this paragraph, and shall be | 2 | | paid out and disbursed as herein provided and shall not at any | 3 | | time be appropriated or diverted to any other use or purpose. | 4 | | Moneys in the Injured Workers' Benefit Fund shall be used only | 5 | | for payment of workers' compensation benefits for injured | 6 | | employees when the employer has failed to provide coverage as | 7 | | determined under this paragraph (d) and has failed to pay the | 8 | | benefits due to the injured employee. The Commission shall have | 9 | | the right to obtain reimbursement from the employer for | 10 | | compensation obligations paid by the Injured Workers' Benefit | 11 | | Fund. Any such amounts obtained shall be deposited by the | 12 | | Commission into the Injured Workers' Benefit Fund. If an | 13 | | injured employee or his or her personal representative receives | 14 | | payment from the Injured Workers' Benefit Fund, the State of | 15 | | Illinois has the same rights under paragraph (b) of Section 5 | 16 | | that the employer who failed to pay the benefits due to the | 17 | | injured employee would have had if the employer had paid those | 18 | | benefits, and any moneys recovered by the State as a result of | 19 | | the State's exercise of its rights under paragraph (b) of | 20 | | Section 5 shall be deposited into the Injured Workers' Benefit | 21 | | Fund. The custodian of the Injured Workers' Benefit Fund shall | 22 | | be joined with the employer as a party respondent in the | 23 | | application for adjustment of claim. After July 1, 2006, the | 24 | | Commission shall make disbursements from the Fund once each | 25 | | year to each eligible claimant. An eligible claimant is an | 26 | | injured worker who has within the previous fiscal year obtained |
| | | HB5366 | - 38 - | LRB101 18184 JLS 67626 b |
|
| 1 | | a final award for benefits from the Commission against the | 2 | | employer and the Injured Workers' Benefit Fund and has notified | 3 | | the Commission within 90 days of receipt of such award. Within | 4 | | a reasonable time after the end of each fiscal year, the | 5 | | Commission shall make a disbursement to each eligible claimant. | 6 | | At the time of disbursement, if there are insufficient moneys | 7 | | in the Fund to pay all claims, each eligible claimant shall | 8 | | receive a pro-rata share, as determined by the Commission, of | 9 | | the available moneys in the Fund for that year. Payment from | 10 | | the Injured Workers' Benefit Fund to an eligible claimant | 11 | | pursuant to this provision shall discharge the obligations of | 12 | | the Injured Workers' Benefit Fund regarding the award entered | 13 | | by the Commission.
| 14 | | (e) This Act shall not affect or disturb the continuance of | 15 | | any
existing insurance, mutual aid, benefit, or relief | 16 | | association or
department, whether maintained in whole or in | 17 | | part by the employer or
whether maintained by the employees, | 18 | | the payment of benefits of such
association or department being | 19 | | guaranteed by the employer or by some
person, firm or | 20 | | corporation for him or her: Provided, the employer contributes
| 21 | | to such association or department an amount not less than the | 22 | | full
compensation herein provided, exclusive of the cost of the | 23 | | maintenance
of such association or department and without any | 24 | | expense to the
employee. This Act shall not prevent the | 25 | | organization and maintaining
under the insurance laws of this | 26 | | State of any benefit or insurance
company for the purpose of |
| | | HB5366 | - 39 - | LRB101 18184 JLS 67626 b |
|
| 1 | | insuring against the compensation provided
for in this Act, the | 2 | | expense of which is maintained by the employer.
This Act shall | 3 | | not prevent the organization or maintaining under the
insurance | 4 | | laws of this State of any voluntary mutual aid, benefit or
| 5 | | relief association among employees for the payment of | 6 | | additional
accident or sick benefits.
| 7 | | (f) No existing insurance, mutual aid, benefit or relief | 8 | | association
or department shall, by reason of anything herein | 9 | | contained, be
authorized to discontinue its operation without | 10 | | first discharging its
obligations to any and all persons | 11 | | carrying insurance in the same or
entitled to relief or | 12 | | benefits therein.
| 13 | | (g) Any contract, oral, written or implied, of employment | 14 | | providing
for relief benefit, or insurance or any other device | 15 | | whereby the
employee is required to pay any premium or premiums | 16 | | for insurance
against the compensation provided for in this Act | 17 | | shall be null and
void. Any employer withholding from the wages | 18 | | of any employee any
amount for the purpose of paying any such | 19 | | premium shall be guilty of a
Class B misdemeanor.
| 20 | | In the event the employer does not pay the compensation for | 21 | | which he or
she is liable, then an insurance company, | 22 | | association or insurer which may
have insured such employer | 23 | | against such liability shall become primarily
liable to pay to | 24 | | the employee, his or her personal representative or
beneficiary | 25 | | the compensation required by the provisions of this Act to
be | 26 | | paid by such employer. The insurance carrier may be made a |
| | | HB5366 | - 40 - | LRB101 18184 JLS 67626 b |
|
| 1 | | party to
the proceedings in which the employer is a party and | 2 | | an award may be
entered jointly against the employer and the | 3 | | insurance carrier.
| 4 | | (h) It shall be unlawful for any employer, insurance | 5 | | company or
service or adjustment company to interfere with, | 6 | | demote, restrain , or coerce an
employee in any manner | 7 | | whatsoever in the exercise of the rights or
remedies granted to | 8 | | him or her by this Act or to discriminate, attempt to
| 9 | | discriminate, or threaten to discriminate against an employee | 10 | | in any way
because of his or her exercise of the rights or | 11 | | remedies granted to
him or her by this Act.
| 12 | | It shall be unlawful for any employer, individually or | 13 | | through any
insurance company or service or adjustment company, | 14 | | to demote, discharge , or to
threaten to discharge, or to refuse | 15 | | to rehire or recall to active
service in a suitable capacity an | 16 | | employee because of the exercise of
his or her rights or | 17 | | remedies granted to him or her by this Act.
| 18 | | (i) If an employer elects to obtain a life insurance policy | 19 | | on his
employees, he may also elect to apply such benefits in | 20 | | satisfaction of all
or a portion of the death benefits payable | 21 | | under this Act, in which case,
the employer's compensation | 22 | | premium shall be reduced accordingly.
| 23 | | (j) Within 45 days of receipt of an initial application or | 24 | | application
to renew self-insurance privileges the | 25 | | Self-Insurers Advisory Board shall
review and submit for | 26 | | approval by the Chairman of the Commission
recommendations of |
| | | HB5366 | - 41 - | LRB101 18184 JLS 67626 b |
|
| 1 | | disposition of all initial applications to self-insure
and all | 2 | | applications to renew self-insurance privileges filed by | 3 | | private
self-insurers pursuant to the provisions of this | 4 | | Section and Section 4a-9
of this Act. Each private self-insurer | 5 | | shall submit with its initial and
renewal applications the | 6 | | application fee required by Section 4a-4 of this Act.
| 7 | | The Chairman of the Commission shall promptly act upon all | 8 | | initial
applications and applications for renewal in full | 9 | | accordance with the
recommendations of the Board or, should the | 10 | | Chairman disagree with any
recommendation of disposition of the | 11 | | Self-Insurer's Advisory Board, he
shall within 30 days of | 12 | | receipt of such recommendation provide to the Board
in writing | 13 | | the reasons supporting his decision. The Chairman shall also
| 14 | | promptly notify the employer of his decision within 15 days of | 15 | | receipt of
the recommendation of the Board.
| 16 | | If an employer is denied a renewal of self-insurance | 17 | | privileges pursuant
to application it shall retain said | 18 | | privilege for 120 days after receipt of
a notice of | 19 | | cancellation of the privilege from the Chairman of the | 20 | | Commission.
| 21 | | All orders made by the Chairman under this Section shall be | 22 | | subject to
review by the courts, such review to be taken in the | 23 | | same manner and within
the same time as provided by subsection | 24 | | (f) of Section 19 of this Act for
review of awards and | 25 | | decisions of the Commission, upon the party seeking
the review | 26 | | filing with the clerk of the court to which such review is |
| | | HB5366 | - 42 - | LRB101 18184 JLS 67626 b |
|
| 1 | | taken
a bond in an amount to be fixed and approved by the court | 2 | | to which the
review is taken, conditioned upon the payment of | 3 | | all compensation awarded
against the person taking such review | 4 | | pending a decision thereof and
further conditioned upon such | 5 | | other obligations as the court may impose.
Upon the review the | 6 | | Circuit Court shall have power to review all questions
of fact | 7 | | as well as of law.
| 8 | | (Source: P.A. 101-384, eff. 1-1-20 .)
| 9 | | Section 99. Effective date. This Act takes effect upon | 10 | | becoming law.
|
|