If you have been hurt on a construction site and filed a workers’ compensation claim, one of the first questions you may ask is: can you be fired while on workers’ comp in Illinois? The short answer is complicated. Illinois is an at-will employment state, which means an employer can generally terminate a worker for almost any reason — or no reason at all. However, there is a critical exception: an employer cannot fire you because you filed or pursued a workers’ compensation claim. Understanding the difference between a lawful termination and an unlawful retaliatory discharge can determine whether you have a separate legal claim on top of your comp benefits.
This article provides general legal information; consult a licensed Illinois attorney for advice specific to your situation.
At-Will Employment and Its Limits in Illinois
Illinois follows the at-will employment doctrine, which gives employers broad authority to end the employment relationship at any time, for nearly any lawful reason. A construction company could, in theory, lay off workers due to a slowdown in projects, eliminate a position, or let someone go for poor performance — even while that person is recovering from an injury. None of those reasons automatically become illegal simply because the employee also has an open workers’ compensation case.
What the law prohibits is using the workers’ comp claim itself as the reason — or even a contributing reason — for the termination. The moment a firing is connected to an employee’s exercise of rights under the Illinois Workers’ Compensation Act, it crosses from lawful at-will termination into unlawful retaliatory discharge.
What Illinois Law Says About Retaliation
The Illinois Workers’ Compensation Act directly addresses employer retaliation. Under 820 ILCS 305/4(h), it is unlawful for any employer to discharge, threaten to discharge, or otherwise retaliate against an employee for exercising any right under the Act — including filing a claim, testifying at a hearing, or retaining an attorney. The statute makes clear that this protection applies from the moment an employee exercises any right afforded by the Act, not just after a claim is formally adjudicated.
This statutory protection is reinforced by Illinois case law. In Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978), the Illinois Supreme Court established the tort of retaliatory discharge, ruling that an employer who fires a worker for filing a workers’ compensation claim can be held liable in a separate civil lawsuit — entirely apart from the workers’ comp case itself. The Kelsay decision recognized that allowing employers to terminate workers for exercising statutory rights would undermine the entire purpose of the Workers’ Compensation Act.
What Counts as Retaliation?
Retaliation does not always take the form of an outright termination letter. Under 820 ILCS 305/4(h), the following employer actions can all constitute prohibited retaliation:
- Termination — firing an employee shortly after a claim is filed, especially without a documented non-comp-related reason.
- Threats — warning a worker that filing a claim will cost them their job.
- Demotion or reduced hours — cutting pay, responsibilities, or schedule in response to a claim.
- Hostile work environment — creating conditions designed to push a worker to quit after they filed.
- Refusal to reinstate — denying a worker their position when they are medically cleared to return while similarly situated workers are retained.
The IWCC Handbook on Workers’ Compensation, published by the Illinois Workers’ Compensation Commission (IWCC), notes that workers who believe they have been retaliated against have the right to pursue both their comp benefits at the Commission and a civil lawsuit in circuit court — these are separate and simultaneous avenues of relief.
How to Prove Retaliatory Discharge
Proving retaliatory discharge requires showing three elements: (1) the employee was engaged in a protected activity — namely, exercising rights under the Workers’ Compensation Act; (2) the employer was aware of that protected activity; and (3) the termination was causally connected to that protected activity. Illinois courts look at the timing of the termination, any statements made by supervisors or management about the claim, the employer’s stated reason for the firing, and whether that reason holds up against the worker’s actual performance record.
Timing alone is not always sufficient, but a termination that occurs days or weeks after a claim is filed — especially when the worker had no prior performance issues — is a significant red flag that courts and juries take seriously. Documentation matters enormously: keep copies of your claim paperwork, any written or electronic communications from your employer about your injury or claim, and records of your work history before the injury.
The Civil Lawsuit Available Under Kelsay
One of the most important aspects of Illinois law on this topic — established in Kelsay v. Motorola and built upon by decades of subsequent decisions — is that a retaliatory discharge claim is a separate civil tort. This means the injured worker can file a lawsuit in Illinois circuit court seeking compensatory damages, including lost wages and benefits, and potentially punitive damages if the employer’s conduct was particularly egregious. This civil lawsuit is entirely independent of the workers’ compensation case proceeding at the IWCC.
Construction workers navigating an Illinois construction workers’ compensation claim who also suspect they were fired in retaliation should understand that these two legal tracks can run at the same time. An attorney experienced in both workers’ compensation and employment law can help coordinate the strategy across both proceedings to protect the worker’s rights on every front.
What You Should Do If You Suspect Retaliation
If you believe your employer fired you — or is threatening to fire you — because you filed a workers’ compensation claim in Illinois, there are steps you should take immediately. First, preserve all documentation: your termination notice, any performance reviews, emails or text messages from supervisors, and records of your comp claim filing date. Second, write down a timeline of events as you remember them, including any conversations about your injury or claim. Third, do not sign any severance agreement or separation document without speaking to an attorney — some agreements contain releases that could affect your ability to pursue a retaliatory discharge claim.
There are statutes of limitations that govern how long you have to file a retaliatory discharge lawsuit in Illinois, and those deadlines can arrive faster than injured workers expect. Acting quickly to consult an attorney gives you the best chance of preserving all available options.
Talk to a Chicago Attorney — Free Consultation
If you or a family member has been affected, the attorneys at Phillips Law Offices are here to help. Call (312) 346-4262 or contact us online for a free, no-obligation consultation.