Synopsis: As We Predicted Last Year, It’s Rauner Day—What Will It Mean to Workers’ Compensation in Illinois?

Editor’s comment: We salute our new Governor Bruce Rauner and our new Lieutenant Governor Evelyn Sanguinetti upon their swearing-in today. We are confident they are going to work hard to make Illinois more competitive in relation to our sister states and a better place for jobs and education, as they have promised. We consider both of these executives to be truly unhindered by party politics and we feel they are going to work in the best interests of our state.

Their biggest battle to be waged in the current malaise that is Illinois state government are the many “fake” pension programs that are “de-funded” and are being paid to pensioners primarily from current tax dollars. The automatic reduction in the Illinois state income tax from 5% a year to 3.75% on January 1, 2015 is certain to rapidly exacerbate a problem which our current Governor has inherited from decades of mismanagement and profiteering by kleptocratic legislators in Springfield. We are happy to provide our thoughts on what should be done to end this morass—if you are interested in our thoughts, send a reply.

On the workers’ comp front, we look to the new report from the Rauner camp about what they are up to. Their 91-page document is online and you can click on the following link to review it:

Building a Better Illinois: Report of the Transition Co-chairs to the Governor-elect

The term “workers’ compensation” appears five times. On page 13, workers’ compensation is used in the context of Costly, uncertain jobs environment. The report accurately indicates Illinois has the seventh-highest workers' compensation insurance premium rate (on average, $2.35 spend per $100 of payroll). The report accurately cites the 2014 Oregon workers' compensation premium rate ranking summary. The Rauner report doesn’t indicate the WC premium rates have gotten dramatically better in the last four years after the passage of the 2011 Amendments to the IL WC Act. We also feel IL WC premium rates have dropped and will keep dropping due to the appointment of many conservative and moderate Arbitrators and Commissioners. We are also certain the five-member IL WC Appellate Court did not get the message about trying to bring Illinois to the middle of the United States in workers’ comp costs. We hope Illinois Supreme Court Chief Justice Rita Garman and the other members of our highest court will someday make changes to the make-up of that important WC reviewing court to perhaps provide some diversity and moderation in future rulings.

On page 14, the Building a Better Illinois report indicates:

Lower the cost of doing business in the state. Illinois should review legislation to ensure its corporate taxes, workers' compensation rates, and unemployment insurance rates are in line with peer states. Currently, many companies choose to locate just across the border in states with more favorable rates, thereby saving significant sums while still taking advantage of Illinois’ transportation and logistics infrastructure. Lowering Illinois’ workers' compensation rates, which are a key factor for executives in determining where to locate or expand operations, could support job retention, create new job opportunities, and significantly improve the business climate.

On page 17, the Building a Better Illinois report recommends Illinois government appoint qualified, highly capable workers’ compensation commissioners and arbitrators.

What’s missing? How about Fixing the IL State WC Defense Program? How About Cutting the IWCC Budget a Bit?

Well, Illinois government is one of the biggest employers in this state and has the worst-run WC defense program. We hope our current Governor and his transition team take a long, hard look at the IL government’s workers’ comp program and start to make changes. We consider the IL WC defense program to be one of the inept and incompetent programs in the history of workers’ comp programs. In our view, it is a paradigm of “kleptocratic” government when it gives prison guards, admin staff and other government workers giant WC benefits that no private organization would ever pay.

We are advised the State of Illinois provides over $150M each year in workers’ compensation benefits to its workers. Current Illinois Attorney General Lisa Madigan and Illinois State Auditor General William Holland both drafted scathing reports that barbequed the State’s WC defense program. If you want these reports, send a reply. This led to the creation of the do-nothing Illinois State Workers’ Comp Advisory Board that was to review, assess, and provide recommendations to improve the State workers' compensation program and to ensure the State manages the program in the interests of injured workers and taxpayers—Yawn. To our understanding, this Board has never met once and has never issued its own report. We are sure IL State government hired an outside TPA to manage its claims but didn’t get rid of the CMS managers the outside TPA was supposed to replace. We are also sure there is a Plaintiff/Petitioner attorney who still “defends” an IL state institution for its defense claims in Chicago.

On cutting the IWCC budget, we note the State of Illinois was able to get along with six Commissioners and about 16 Arbitrators under the last Republican administration. We now have nine Commissioners and about double the number of Arbitrators. As the number of new IL WC claims are down, we feel some careful budget cutting could take place to maximize taxpayer dollars.

In summary, we assume you are going to see a brave, new Illinois under new Governor Rauner and Lt. Gov. Sanguinetti. We hope all of our readers are ready, willing and able to provide your best thoughts and ideas for them. We also appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Compliance with the New Illinois Pregnancy Accommodation Law. Analysis by Bradley J. Smith, J.D.

Editor's Comment: If you employ one or more workers in our state, review and comprehension of this article is critical. The Pregnancy Accommodation Act (a.k.a. the “Pregnancy Fairness Law”) (P.A. 98-1050) amended the Illinois Human Rights Act to offer enhanced rights to pregnant employees. As of January 1, 2015, this law took effect, affecting every employer within Illinois. The Act applies to employers employing one or more employees and further applies to full-time, part-time, and probationary employees. Under the Act, it is a violation of the IHRA for an employer to:

· Require a job applicant or employee to accept an accommodation the applicant or employee does not desire;

· Require an employee to take leave if reasonable accommodation can be provided;

· Not make a reasonable accommodation, if requested, to an employee for “conditions related to pregnancy, childbirth, or related medical conditions,” unless the employer can demonstrate the accommodation would impose an undue hardship on the employer;

· Retaliate against an employee applying for a position, or current employee for requesting an accommodation; or

· Fail to reinstate an employee affected by pregnancy, childbirth, or common related conditions to its original or an equivalent job with equivalent pay and benefits upon her signifying her intent to return or when her need for reasonably accommodation ceases, absent proof of an undue hardship on the employer’s business.

The Pregnancy Accommodation Act further provides a non-exhaustive list of reasonable accommodations, which explicitly includes:

· Private non-bathroom space for expressing breast milk and breastfeeding;

· More frequent or longer bathroom breaks, or breaks for increased water intake or periodic rest;

· Sitting;

· Assistance with manual labor;

· Light duty;

· Temporary transfer to a less strenuous or hazardous position, job restructuring or reassignment to a vacant position;

· An accessible work site or modification of equipment;

· A part-time or modified work schedule or time off; and

· Appropriate adjustment or modifications of examinations, training materials, or policies.

An employer providing light duty to other types of non-pregnant employees, under the Act creates a rebuttable presumption the accommodation does not impose an undue hardship on the employer. In other words, if your non-pregnant employee is injured on the job, and you provide light duty to accommodate that employee, it is presumed you will do the same for a pregnant employee, and failure to do so will create a presumption of discrimination.

An employer may only refuse to provide a reasonable accommodation when it poses an undue hardship on the company. The burden of demonstrating undue hardship is on the employer. The Act provides the following factors in determining whether a reasonable accommodation would be an undue hardship: 1) The nature and cost of the accommodation needed; 2) The overall financial resources of the employer; 3) The number of employees at the facility; and 4) the overall size and financial resources of the employer generally.

The Act does allow an employer to request a medical certification from the employee’s healthcare provider concerning the reasonable accommodation request, if it is job related and consistent with business necessity.

Notably, employers must post the Illinois Department of Human Rights approved notice poster, or include a statement in their handbook summarizing the requirements of the Act and providing information about filing a charge of discrimination. The new posters are available from the Illinois State Chamber—if you want the link, send a reply.

The Act minimizes the expected outcome of Young v. U.P.S., which is currently awaiting ruling by the U.S. Supreme Court. Arguments in Young were heard on December 3, 2014. The Young case presents an issue related to providing light duty work for pregnant employees pursuant to the Pregnancy Discrimination Act under federal Title VII when their co-employees injured on the job are provided light duty work.

In order to comply with the Act, employers will need to implement and engage in an interactive process and also accommodate pregnancy-related conditions. This could include not only conditions related to childbirth and pregnancy related sickness, but also to pre-pregnancy conditions, such as, in vitro fertilization treatments.

As you read this, we are preparing a presentation on Managing Pregnant Workers and should have it for your consideration in the near future. If you have interest in a webinar on the topic, send a reply. The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the Illinois Pregnancy Accommodation Law, employment law, and general liability defense at bsmith@keefe-law.com.

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Synopsis: The Great John Chamberlain, Longshore Act Guru and Founding Father of Signal Mutual Insurance Passes Away.

It is with great sadness we report the unexpected passing of John Chamberlain at the age of 74. A founding father of Signal Mutual Insurance which is a dominant insurer in the LHWCA field, John began work for Charles Taylor in 1969; moving to the United States in the early 1980s to work with a leading maritime consulting and claims adjusting firm, Lamorte Burns, on the early development of the business which would eventually become Signal Mutual.

John served on Signal Mutual’s Board of Directors from its inception until his retirement from Charles Taylor in 2005. John had also held various positions of executive responsibility throughout his tenure. A naturalized citizen of the United States, John always joked that while most of his friends and colleagues were American by “accidents of birth,” that he actively chose to become an American. Upon his retirement from Charles Taylor, John’s dedication to his adopted country led him to accept the position of Branch Chief, Financial Management, Insurance, and Assessment with the United States Department of Labor Office of Workers’ Compensation (OWCP), the regulator for all Longshore underwriters and self-insureds. After five years of service with the OWCP, John again retired to found a consulting firm.

John passed away on January 1, 2015 in Denver, Colorado. He was returning to Connecticut from a family holiday gathering in California and was taken ill in transit. He was rushed to University of Colorado Hospital where he died in the midst of urgent surgeries. He is survived by his wife Diana; five children, Richard, Nick, Clare, William and Tom; and grandson Arlo.

John taught your editor and our other partners Longshore practice. We will always thank him for it.

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Synopsis: Engage Directly with Experts in the Workers' Comp Arena at this Year's Illinois Workers' Comp Forum.

Editor’s comment: Do you administer workers’ compensation claims? Are you involved in strategic planning? Concerned with medical costs and utilization? Looking for a better understanding of workers' compensation?

Then you won't want to miss the Illinois Workers' Comp Forum, now in its 5th year. Moved to downtown Chicago at Loyola's Quinlan School of Business on May 4-5, 2015, the event provides attendees the opportunity to hear perspectives from and engage directly with experts in the workers' comp arena including:

Joan Vincenz, Managing Director – Workers’ Compensation and Managed Care, United Airlines
Gene Keefe, Esq., Partner, Keefe, Campbell, Biery & Associates, LLC
Don Phillips, Safety Coordinator, City of Naperville
Devin Stoll, Human Resources Manager, Cintas Corporation

Download the brochure and view their complete list of speakers. Visit their website or call: (646) 807-8555 to reserve your seat today. We look forward to seeing you this May in Chicago.

KCBA Blog

1-12-15; It's Rauner Day!!--What Does It Mean for IL WC?; Pregnancy Discrim by Brad Smith; John Chamberlain, RIP and more