On May 17, 2019, Illinois Governor Pritzker signed legislation eliminating the state’s 25-year statute of repose under the Workers’ Compensation Act for latent diseases, overturning the prominent Supreme Court decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015), which established clear precedent that an employee’s exclusive remedy lies under either the Workers’ Compensation or Occupational Diseases Act. Under the old law, an employee did not have a civil tort cause of action against their employer. This new law now creates an exception to the traditional exclusive remedy provision that has been part of the Illinois Workers’ Compensation system for over 80 years.

The legislation, introduced in February of 2019 as SB 1596, was recently signed into law as Public Act 101-0006. It was passed by the Illinois Senate by a vote of 41-16 and the Illinois House by a vote of 70-40. Effective immediately, the law amends the Illinois Workers’ Compensation Act and Workers’ Occupational Diseases Act to allow employees to sue their employers in civil tort actions for latent injuries that manifest more than 25 years after occupational exposure.

The major question looming over asbestos litigation is whether plaintiffs’ attorneys may attempt to apply Public Act 101-0006 retroactively to pending cases filed before the date this legislation was enacted on May 17, 2019. There are two recent Illinois Supreme Court decisions that hold that a plaintiff’s cause of action that was already time-barred under the limitations period contained in a previous version of a statute that later allowed the once time-barred claims to go forward deprived the defendants of a vested right in violation of due process protections under the Illinois Constitution. See John Doe A. v. Diocese of Dallas, No. 106546, 2009 WL 3063427 (Ill. Sept. 24, 2009) (holding legislative amendments to a childhood sex abuse statute of limitations did not apply retroactively to revive previously barred claims); Perry v. Department of Financial and Professional Regulation, 2018 IL 122349 (2018) (holding statutory changes which are substantive are not to be applied retroactively). As discussed above, assuming Illinois courts take a prospective approach to the new law, it should only impact cases filed after May 17, 2019, as defendants should be entitled to rely on the prior law in cases filed prior to when this new law went into effect.  There may also be constitutional challenges that this law intentionally creates a special class of injured workers who are entitled to sue in civil court, those who manifest a disease more than 25 years after their last exposure, while leaving all other occupational workers exposed less than 25 years ago subject to the workers’ compensation system. It is a unclear why claimants with exposures occurring more than 25 years ago are able to pursue a civil action but those claimants with exposure occurring 24 years and 11 months ago cannot.  This raises the question of whether the statute bears a rational relationship to a legitimate government purpose or compelling state interest, which is required to be constitutional.

Illinois now joins a select group of sister states that allow employers to be sued outside of the workers’ compensation scheme. It is likely employer defendants in Illinois cases will now (more than ever) seek application of foreign law on this issue to avail themselves of other states’ exclusive remedy provisions. This should be a substantive issue, such that Illinois courts look at workers compensation law to applies to each case. In addition, the date of last exposure at an employer’s premise is critical to this new law as it will determine whether a plaintiff sues in civil court or must go through the traditional workers’ compensation system.

While it is still unclear how this new law will play out in the court systems around Illinois, clarity on whether the law can be applied retroactively is unlikely to come without challenges and appeals by asbestos defendants in Illinois courts. For more information on this issue, please see the previous post on this issue or contact Andrew German. This article was published as part of the Toxic Tort Monitor. You can read the full edition here.