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When a worker is injured in the course of his or her employment, the legal remedy for that injury is to file a workers’ compensation claim. But some workers are reluctant to file a workers’ compensation claim, fearing that their employer may fire them, give them a bad performance review, or otherwise discriminate against them in the future. However, there are two reasons that workers should feel comfortable with choosing to file a workers’ compensation claim in Illinois. First, employer retaliation for filing a claim is illegal under the Illinois Workers Compensation Act (IWCA). Second, Illinois courts recognize a cause of action for retaliatory discharge that protects workers from firing when they exercise their rights under the IWCA.

Let’s start with the IWCA itself. 820 ILCS 305/4(h) makes it illegal for an employer to “interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her” by the IWCA. In case that wasn’t clear enough, it specifies certain types of action that are covered by that prohibition. Specifically, employers cannot:

• Discriminate, attempt to discriminate, or threaten to discriminate against an employee;
• Discharge or threaten to discharge an employee; or
• Refuse to rehire or recall an employee to active service in a suitable capacity simply because the employee exercised his or her rights under the IWCA.

However, the IWCA doesn’t provide an express remedy for employees who have been terminated in retaliation for filing a workers’ compensation claim; it merely makes such retaliation illegal. But Illinois courts have stepped in to fill that statutory gap. For decades, the courts have recognized a cause of action for retaliatory discharge. To prove retaliatory discharge with respect to a workers’ compensation claim, a plaintiff must show that (1) he or she was an employee prior to injury; (2) he or she exercised a right granted by the IWCA; and (3) his or her discharge was causally related to the filing of a workers’ compensation claim.

Note that under those standards, the employer doesn’t have to prove that its discharge of an employee wasn’t retaliatory. Normally, an at-will employee can be fired for any reason at all, or even for no reason at all. Even after a worker files a workers’ compensation claim, the employer still has the right to fire the worker for non-retaliatory reasons, such as absenteeism or misconduct. So, the plaintiff (i.e., the worker) must first provide evidence that shows he or she was discharged in retaliation for filing a workers’ compensation claim. Then, the employer will have the chance to put on evidence that the discharge was for some non-retaliatory reason—evidence that the worker can then attempt to rebut.

As you can tell, the rules governing retaliation for filing a workers’ compensation claim can be complicated. This brief discussion has only started to scratch the surface. If you ever find yourself injured on the job, call the knowledgeable attorneys at Costa Ivone, LLC to protect your rights under Illinois law.