On May 17, 2019, Governor J.B. Pritzker signed into law Illinois Public Act 101-0006.[1]  The legislation amends provisions of the Illinois Workers’ Compensation Act[2]  and Workers’ Occupational Disease Act[3] (hereinafter collectively “the Acts”), effective immediately.  Public Act 101-0006 represents a significant shift in public policy for latent disease claims and effectively nullifies the Illinois Supreme Court’s decision in Folta v. Ferro Engineering.[4]

Historically, the Acts and recovery through the Illinois workers’ compensation system, as opposed to the civil tort system, have provided the exclusive remedy for an employee’s injury arising out of and in the course of employment.  In Folta, an individual suffering from mesothelioma brought a civil tort action against his employer from some 41 years prior in which he alleged that he developed the disease as a result of asbestos exposure during the course of his employment.  The action was filed outside of the 25-year statute of repose proscribed by the Acts[5] and thus, the former employee argued, the claim was “not compensable” under the workers’ compensation system and should be allowed to proceed in tort.

In a seminal decision, the Folta court chose not to extend the “not compensable” exception beyond the Acts’ statute of repose and held that an employer’s liability for an employee who suffers latent injury is exclusively limited to the Acts and recovery through the workers’ compensation system.  Accordingly, the former employee was barred from seeking recovery against his former employer via the workers’ compensation system or the civil tort system.

Public Act 101-0006 amends the Acts to allow civil tort actions in situations like Folta, where an employee develops a latent disease and seeks to recover against their employer beyond the Acts’ “25-years after last exposure” repose period.  The practical effect is to ensure an avenue of recovery for employees who develop latent diseases while exposing employers to unlimited future liability.  In addition to an avenue of recovery, the claimant is also availed of the higher damages under the civil tort system, including pain and suffering, which are generally not recoverable in workers’ compensation.

[1] The new legislation can be accessed at:     http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=101-0006

[2] 820 ILCS 305/1 et seq.

[3] 820 ILCS 310/1 et seq.

[4] 2015 IL 118070 (2015).

[5] 820 ILCS 310/6(c) 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.”