Who Operates Under the Illinois Workers’ Compensation Act?
In order for an injured worker to receive workers’ compensation benefits, the employer must be operating under the Illinois Workers’ Compensation Act. Three types of employers are “under the Act”:
- government employers;
- employers who elect to bring themselves under the Act; and
- employers who are subject to “automatic application” of the Act.
Virtually every governmental body within the state of Illinois is under the Illinois Workers’ Compensation Act, including the State of Illinois itself. If you are employed by the State of Illinois, or by any Illinois county, city, town, township, incorporated village, school district or body politic within this state, your employer is under the Act. Uniformed Chicago police officers are not covered by the Illinois workers’ compensation system, and Chicago firefighters are covered only for disfigurement caused by burn injuries. However, Chicago police and firefighters have a parallel system of compensation for on-duty work injuries whose protections are similar to those provided by the Illinois Workers’ Compensation Act.
Any other employer can elect to be under the Illinois Workers’ Compensation Act, either by purchasing workers’ compensation insurance or by becoming certified by the State of Illinois as a self-insurer. Most employers doing business in Illinois have elected to be under the Act in one of these two ways.
An injured employee whose employer has not elected to be under the Act may recover benefits only if the employer is subject to “automatic application” of the Act. “Automatic application” depends on whether the employer’s business is legally defined as “extrahazardous.” If so, the employer must pay benefits to its injured employee.
At one time, only the most dangerous work, such as construction, excavation, electrical work and mining, was legally considered “extrahazardous.” But over the years, our legislature has expanded its list of extrahazardous jobs, and it is now easier to list the types of employers who are not automatically under the Act than to name those who are. Nowadays, the only private sector employers clearly not under the Act are small family farms, household employers of part-time domestics, and sole proprietors and partners who exempt themselves from coverage.
Employers who are neither insured nor certified as self-insurers may prove to be small, “mom and pop” outfits that are financially unable to pay benefits. A deadbeat employer can be fined up to $500.00 per day for each day it fails to purchase insurance. At one time, the injured worker received no part of those fines. However, an amendment to the Workers’ Compensation Act created the Injured Workers Benefit Fund. Fines collected from uninsured employers are now deposited in the Fund and used to pay workers’ compensation awards to employees of uninsured employers, where the awards would be otherwise uncollectable.
Protection for Employees from Uninsured Employers
Aside from the Injured Workers Benefits Fund, the Act does provide some measure of protection for employees of uninsured employers, in limited situations. One safety valve applies to businesses engaged in construction, excavation, electrical work or structural work. If a general contractor engaged in one of those activities hires an uninsured subcontractor to do the work, the general contractor must pay workers’ compensation benefits to the injured employees of that uninsured subcontractor.
A second remedy for workers whose employers lack insurance applies to “loaned employees.” When a workers is injured while on loan from one employer to another, the claim for workers’ compensation may be filed against either or both employers.
If you become employed at a new job, it is critically important to know what your employer is operating “under the Act.” Make certain to identify your employer’s workers’ compensation insurance carrier or its claims service representative. Only then can you be assured of protection by the Illinois workers’ compensation laws.
Marc Perper is a partner with the firm of Horwitz, Horwitz & Associates, Ltd., with offices in Chicago and Joliet. Since 1984, Mr. Perper has represented injured workers as a Chicago workers’ compensation lawyer at the Illinois Workers’ Compensation Commission, in Circuit Court, and before the Illinois Appellate Court and the Illinois Supreme Court. Mr. Perper frequently speaks on workers’ compensation issues to consumer groups, labor organizations, advocacy groups for the disabled and at bar organization seminars. He is a former member (withdrawn in good standing) of Service Employees’ International Union Local 236.