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2018 Employment Law Update

September 2018

By W. Scott Trench

Employment Law Legislative Update

Illinois Governor Bruce Rauner recently signed off on two new legislative amendments of which employers in Illinois should be aware. The first is an amendment to the Illinois Wage Payment and Collection Act, 820 ILCS 260/10, which requires employers to reimburse employees for all necessary expenses incurred which are directly related to services performed for the employer. The second is an amendment to the Nursing Mothers in the Workplace Act, 820 ILCS 115/9.5, under which Illinois employers will now be required to provide nursing mothers with paid breaks to nurse or express breastmilk. These important amendments, and their impact on Illinois employers, are discussed below.

Illinois Wage Payment and Collection Act

The recent amendment to the Illinois Wage Payment and Collection Act, which becomes effective on January 1, 2019, will require Illinois employers to reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” Under the new law, “necessary expenditures” means “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” The employee has 30 days to submit a request for reimbursement with supporting documentation. While most employers reimburse employees for necessary business expenses, this new statute could capture expenses incurred by employees not contemplated by employers such as cell phone data charges for work-related calls and expenses incurred by remote employees for home internet access and related equipment.

Illinois Appellate Court Analyzes the Definition of “Sidewalk” Under the Snow and Ice Removal Act’s Immunity Provision

June 2018

By Anthony P. Ulm

In Hussey v. Chase Manor Condominium Association, et al., (2018) IL App. 1st 170437, the First District Appellate Court reversed the trial court’s ruling that an informal pathway behind a condominium building was a sidewalk under the Snow and Ice Removal Act (“Act”) 745 ILCS 75/2 (West 2012). The appellate court held that the term “sidewalk” is limited to a municipal right-of-way, which is the portion of the public street reserved for pedestrians that abuts private residential property.

Appellate Court Rejects Argument that Workers’ Compensation Lien Should be Extinguished Based on Improper Conduct of Insurer

June 2018

By W. Scott Trench

The Illinois Appellate Court, Fifth District, recently addressed whether a workers’ compensation lien, under 820 ILCS 305/5(b) of the Illinois Workers’ Compensation Act, could be subject to reduction or elimination on equitable grounds due to the conduct of the insurer. In Estate of Rexroad v. Mid-West Truckers Risk Management Association, 2018 IL App(5th) 170342, the Appellate Court rejected an “equitable extinguishment” argument, reaffirming the absolute right of employers and insurers to recover a Section 5(b) lien from the proceeds of any settlement recovered from a third-party tortfeasor.

Second District Appellate Court Overturns Trial Court’s de minimis Finding

June 2018

By Andrew R. Makauskas

Bartkowiak v. City of Aurora, 2018 Ill. App. (2d) 170406, arose out of a fall at the parking lot of the Route 59 train station in Naperville. The plaintiff caught her toe in a depression in a pavement seam in a driving aisle as she crossed the aisle to get to her car. She alleged the defendant failed to maintain the asphalt surface of the parking lot in a reasonably safe condition. She also contended the defendant failed to provide adequate artificial lighting in the parking lot so that pedestrians could see potential defects that existed therein (the latter allegation was eventually dropped, as experts from both sides agreed that lighting was not an issue).

Medicare “Liens”: Departure From The Past Continues With Medicare Advantage Plans and Private Causes of Action

June 2018

By Paul W. Pasche

When Medicare was created in 1965, the original legislation made Medicare “secondary” to workers’ compensation (WC), and Medicare was not supposed to pay for any expenses that were covered under a WC claim. In 1980, Congress expanded this idea into the area of liability and no-fault cases. For years, insurers, attorneys, and parties to litigation could simply contact Medicare and negotiate a resolution of any medical bills paid by Medicare that were related to a particular claim. In the past decade or so, Medicare has ramped up its efforts to collect “conditional payments,” so-named because Medicare pays the bills on condition that the “primary” insurance will later reimburse Medicare. The Centers for Medicare and Medicaid Services (CMS) has set up two different contractors to handle conditional payments: the Benefits Coordination & Recovery Center (BCRC) and the Commercial Repayment Center (CRC), and different procedures apply to each contractor, including differentiating the party or parties with whom Medicare will even communicate. Failure to pay back conditional payments can subject a primary plan to double damages, interest, and litigation costs. As labyrinthine as this system may already seem, any liable party or insurer needs to beware that the BCRC and CRC only handle “traditional” Medicare, which includes Medicare Part A (hospitalization) and Part B (medical) coverage where Medicare has made payments directly to the health care providers.

LMSAs: Is 2018 the Year?

June 2018

By Nicole L. Wiza

As we enter into the second half 2018, the anticipation surrounding reform of Medicare Set-Asides (MSAs) in liability and no-fault claims is growing. However, recent discussions by CMS reveal that it is not likely any formal process will be adopted soon. Over the last nearly 20 years, The Centers for Medicare and Medicaid Services (CMS) has provided a number of guidelines, thresholds, and policies for navigating the MSA process in Workers’ Compensation claims. However, the same has not been formalized for liability and no-fault claims … yet. All signs seem to point to potentially big changes for Liability Medicare Set-Asides (LMSAs) in the near future. Or at least in the future.

What are these signs of change? Initial rumblings of the formalization of the LMSA process started back in 2016. At that time CMS announced intentions to plan a series of town hall meetings to address reforms. Then, CMS advised Medicare and its contractors, effective October, 2017, to begin rejecting medical claims submitted post-resolution of a liability settlement on the basis the claims should be paid out of an LMSA. In concert with its search for a new set-aside review contractor in 2017, the CMS “job posting” requested the contractor provide review of liability and no-fault MSA submissions in addition to workers’ compensation MSAs. The amount of the contract with the new reviewer was purported to be more than 10 times the dollar amount received by the previous contractor. Speculation loomed that the large increase in the contract value signaled an increase in the expected workload if/when voluntary submission thresholds were added for Liability and No-Fault MSAs.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
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